Canadian Court Requires CVR Disclosure

[PJ2]

Not the first time in Canada that a CVR has been provided in court.
Air France must disclose cockpit voice recorder

The cockpit voice recorder that captured conversations between the pilots aboard Air France Flight 358 before it overshot a runway at Pearson airport and exploded in flames must be disclosed to Canada's air traffic control agency, the Ontario Court of Appeal has ruled.

In a unanimous decision Friday, the court dismissed arguments from the Transportation Safety Board of Canada that disclosing the contents of the voice recorder - part of a plane's "black box" - would destroy or greatly diminish the trust pilots have in the confidentiality of the process for investigating airline crashes.

NAV Canada, which is responsible for air traffic control at the airport, says it needs the voice recorder - described earlier in the case as an "electronic fly on the cockpit wall" - to defend itself against lawsuits from Air France and nearly 300 passengers on-board the flight from Paris on Aug. 2, 2005.

The Airbus A340 plunged into a ravine while landing in lightening and heavy rain.

NAV Canada alleges pilots Alain Rosaye and Frederic Naud were negligent.

Naud, the first officer, was not opposed to having the voice recorder released as part of the litigation.

But the board contended that if the contents were disclosed, pilots will hold back on what they are willing to tell investigators in the future.

Writing for a three-judge panel Friday, Justice Stephen Goudge characterized that as little more than speculation.

"It is simply baldly asserted and is unsubstantiated by evidence, for example, that previous orders for disclosure have caused pilots to be less cooperative with subsequent investigations," he said.

The court also rejected the board's claim that cockpit recordings should only be disclosed if withholding them would lead to a miscarriage of justice.

In Canada, cockpit voice recordings are normally privileged, to be disclosed only to aviation investigators.

But under the Canadian Transportation Accident Investigation and Safety Board Act, a judge can order the voice recorder to be disclosed if the importance of the evidence outweighs confidentiality concerns.

Two pilots' unions, the Air Line Pilots Association and the Air Canada Pilots Association, representing nearly 60,000 pilots around the world, intervened in the case, arguing the cockpit is their inner sanctum, a private workspace comparable to an office.

Disclosing the recording would be detrimental to aviation safety, they maintained, because pilots may not speak freely to the control tower if their every word might later be reviewed in court.

The transportation safety board's report into the Air France crash suggests "certain acts or omissions" of the pilots may have contributed to the accident, according to a Superior Court judge, who last year ordered the voice recorder disclosed, a decision the board appealed.

Justice George Strathy also ordered the board to provide NAV Canada with its animation of cockpit activity.

In court documents, NAV Canada alleges a passenger was flying in a cockpit jump seat contrary to Canadian aviation regulations.

News, Toronto, GTA, Ontario, Canada, World, Breaking, Daily, Science, Technology - thestar.com (http://www.thestar.com/news/)

[J.O.]

It's time to start recording all "in camera" discussions in judges' chambers so that they can be turned over to plaintiffs in wrongful conviction cases.

[411A]

I personally see nothing improper about disclosing CVR data to proper authorities, and certainly have no objection to a court of law, where legal opinions are being litigated.
As for pilots clamming up if this data is disclosed...well, the CVR usually tells all, so these pilots are simply being obstinate.
IF the judge says 'disclose' one had better disclose, or be held in contempt of court.
It's time to start recording all "in camera" discussions in judges' chambers so that they can be turned over to plaintiffs in wrongful conviction cases
Agree, long overdue.

[BOAC]

But the board contended that if the contents were disclosed, pilots will hold back on what they are willing to tell investigators in the future.- the corollary of which is that they may not need to tell them:)

I do not follow because pilots may not speak freely to the control tower if their every word might later be reviewed in court.

[Basil]

Disclosing the recording would be detrimental to aviation safety, they maintained, because pilots may not speak freely to the control tower if their every word might later be reviewed in court.
That is not a very good point. ATC also record transmissions.
The CVR was installed and accepted by flight crew solely for accident investigation. If the courts wish to have access to them for litigation then I suggest we begin pulling the CB until they and their controlling legislature come to their senses.

Crossed with previous.

[fireflybob]

Slightly off thread topic but has this accident report been published and does anyone have the link? Thanks for any help.

[BOAC]

I have not downloaded it, but try

http://www.tsb.gc.ca/eng/rapports-reports/aviation/2005/a05h0002/a05h0002.pdf

[Rwy in Sight]

Basil,

Should an accident / incident occurs and the CVR has been pulled, does the crew run the risk of being accused of tempering with evidence?

Rwy in Sight

[flydive1]

I personally see nothing improper about disclosing CVR data to proper authorities, and certainly have no objection to a court of law, where legal opinions are being litigated.

Problem is, how long do you think is going to take before they are going to end up on newspapers?

[punkalouver]

If you read plenty of reports, you will see that many countries publish the CVR transcripts, including the U.S. Sometimes it is quite useful in helping to understand what happened, therefore it is increasing aviation safety.

[clunckdriver]

Time for us to brush up on our American Sign Speach, problem is you need both hands for a lot of the symbols, how long before vidio link comes to the flight deck? Anyone have any thoughts on this as it has I belive been proposed by at least one authority?

[Lonewolf_50]

I agree with Basil. This piece of equipment was installed for a purpose.

If this goes forward, I suggest voice recorders be turned on whenever a public defender and a criminal are having a meeting or a discussion on a case. :p

[lomapaseo]

If you read plenty of reports, you will see that many countries publish the CVR transcripts, including the U.S. Sometimes it is quite useful in helping to understand what happened, therefore it is increasing aviation safety.


I quite agree.

I also agree with the sentiment of others that to release the actual sound recordings may spiral much further then intended.

I don't understand what's going on here so maybe somebody can help me out.

From my read the ATC guys are trying to defend themselves by proving that a non authorized jumpseat rider was in the cockpit.

Typically in most other countries this would have been proven or disproved by the AAIB/TSB/NTSB/BEA written summary report of the CVR and that should be enough.

Is this what is now being requested?

I don't like the idea of releasing actual sound recordings for expert analysis not in the interests of preventing accidents

[411A]

...I suggest we begin pulling the CB until they and their controlling legislature come to their senses.


All very interesting, however, IF you do so without a very good reason (IE: not according to you), you are quite likely to be out of a job.:rolleyes:
Further, if it becomes routine, flying license suspension/revocation action is quite likely to be undertaken by the responsible regulatory authority.

In short, a rather daft idea.:rolleyes:

[PaperTiger]

I don't like the idea of releasing actual sound recordings for expert analysis not in the interests of preventing accidents.The article is not well written so I don't know that the judge is actually ordering the recording to be released as opposed to a transcript.

As others have said, there are many such transcripts already on the web. If you don't want your idle chat to become public then don't enagage in it ?

[Basil]

Rwy in Sight & 411A,
I agree but, nevertheless, a threat which IFALPA and national pilot unions should be making.

[SLFinAZ]

I'm sorry but isn't this a knife that cuts both ways? How often do we have complaints and or ruminations that this type of information won't be released (Libya, Pakistan, Lebanon and India just now). What if you need the tapes to defend your actions later? The bottom line seems pretty simple, once you accept the responsibility you accept potential scrutiny of your actions in the event things go south.

[20driver]

The ATR crash off Sicily being a good case in point.
The court was making out one representation of the data that was very harsh on the pilot. Listening to the tapes it was clear something else was happening.
A transcript is very open to interpretation.

Not an easy issue as it is emotional, but if you are getting accused you are going to want to have all the available raw data, not someones redacted version, for your defense.

20driver

[J.O.]

20driver;

The problem is, the CVR is not being requested by Air France (or their pilots) in defence of a legal action. It is being requested by a third party, and for rather dubious reasons. How is proving the existence of a jump seat rider, be it legal or not, in any way going to be relevant to defending the actions of ATC on that day?

My other problem with this is that Nav Canada and their controllers union have very strict agreements and controls in place as to what can and cannot be done with ATC recordings, and unless things have changed, release of said recordings to third parties is a non-starter. Were the shoe on the other foot, I am sure that Nav Canada would rigorously defend the protection of the ATC recordings in a similar situation. :ugh:

To be clear, I am not at all in favour of removing flight data recorders from commercial transport aircraft. Their existence has greatly led to the safety improvements that I enjoy on the job today. But we pilots have only accepted the existence of data recorders because we were sold on the notion that their intent was solely for the improvement of flight safety. Cases such as this are game changers, and we need a concerted and coordinated effort to set this right now before it gets out of control, which will not be good for safety in the long run, IMHO.

[draglift]

Hoot Gibson's version of events in his TWA 727 incident in 1979 was not believed by the authorities and he lost his job.

The fact that the CVR had been "accidentally" wiped didn't help his case and made him look guilty. Erasing CVRs at the end of the flight is contrary to many companies SOPs.

[PJ2]

J.O. - very well said.

411A;

Correct my view if need be but your thesis seems to be, as long as pilots say and do the "right thing", (ie, maintain cockpit discipline, stick to SOPs - all the usual appropriate behaviours in other words), we have nothing to worry about if/when our cockpit conversations are released "in the public interest" because we will have "nothing to hide".

I disagree. The "discourse of accident investigation" is different than "the discourse of finding legal blame".

Even if the actual recordings are released, (and in the 2003 Quebec Propair case they were...the CVR was played in court), those who become ear-witnesses in a process designed specifically to find legal culpability will interpret what is heard differently than those who are investigating sounds purely for causal factors.

The very best intentions, professional competencies and in-the-moment actions on the part of the crew are, by design, reinterpreted as "evidence" for a case which intends to find blame/culpability, (or to excuse same), and not to determine the causal factors which resulted in the accident.

This does not mean legal proceedings and attendant responsibilities can or should be avoided. It just means that those who would prosecute legal proceedings must obtain their own evidence from sources other than those specifically intended and designed for flight safety purposes.

In fact, it is an irony that the narrow interpretation of "the public interest" is sufficient justification for release of privileged flight safety information when it may very well be the broader public interest, in terms of a safe aviation industry, which is in the long run harmed by the chilling effects of such individual release.

PJ2

[JW411]

Well, I am old enough to remember the invention of the CVR.

I can also remember the great hue and cry about having flight deck conversations recorded.

The biggest issue seemed to be that our flight deck conversation about what a w*nker the new ops manager was, or, who was srew*ing who among the girls/boys in the back of the aeroplane could come back to haunt us turned out to be completely unfounded.

After a couple of weeks, we forgot that the thing was there and we carried on just as if nothing had happened.

I personally have absolutely no worries about the contents of any CVR that I ever contributed to being made public.

Flight safety is flight safety and we should all be allowed to see each other's viewpoint in the event of an accident.

[SLFinAZ]

But if you feel your not subject to professional scrutiny up to and including a review of the CVR in the event of an incident then turn in your ATPL and sit in the back where you belong.

Anyone in any profession that involves a professional responsibility for the lives of others automatically accepts the highest standard of professional accountability, both legally and morally. The best defense against a "legal witchhunt" is the truth. The CVR should be your best friend, not your worst nightmare...

[PJ2]

SLFinAZ;

To help you comprehend the issue more subtlely, this link (http://www.tsb.gc.ca/eng/medias-media/articles/multimodal/2009//ht_200905.asp)to the Canadian TSB article below may help. The matter is not one of not accepting the necessity of maintaining a high standard of professionalism and competency as you are implying in your comments. Such protection of flight data is not a "get out of jail card"; such a view entirely misses the point of having such data available in the first place. I suggest you read this carefully. I think this contribution by the TSB provides a good understanding of the issue. The title of the article is shown below.

This article was published in The Journal of Parliamentary and Political Law, Volume 2 Number 3, in May 2009

No Fault, No Blame: Protecting Evidence in Transportation Accident Investigations

May 2009
by Wendy A. Tadros – Chair, Transportation Safety Board of Canada
and Allen C. Harding – General Counsel, Transportation Safety Board of Canada
JW411;
Flight safety is flight safety and we should all be allowed to see each other's viewpoint in the event of an accident.
There is more at play in this matter than merely "each other's viewpoint". I think most of us are in the same category as you place yourself...that our conversations could be openly played without result.

However, the matter of making data available to non-aviation/non-safety groups goes to the heart of the use of CVR, DFDR, FOQA and Air Safety Reports. What if a group of passengers complained about "turbulence" or a hard landing and felt that the pilots put their lives "in danger"? What if, through precedents such as the present one, they then demanded the data and got it for use in court to prosecute a lawsuit claiming 'damages' of some sort? Do you hand over safety data for such requests that come from those who are in no position to judge but by dint of "public interest" suddenly have that authority? Do you remain comfortable with the knowledge that those who know nothing about aviation but a lot about tort law will be judging you on the basis of the CVR?

This is NOT about "hiding information" nor is it about "witch hunts" - the process is much more intelligent, subtle and professional than such characterizations lead one to believe. The process works, and has for decades, as the record attests. Flight safety is indeed, flight safety and the information garnered by those who do the investigations and write the reports needs to be widely shared but an indiscriminate sharing of all data would lead to more harm than the good that is intended.

PJ2

[Basil]

But if you feel your not subject to professional scrutiny up to and including a review of the CVR in the event of an incident then turn in your ATPL and sit in the back where you belong.
I don't know where you belong but the professional pilots on this website belong on the flight deck of a public transport aircraft.

Good, now that's sorted.

The CVR was introduced for use in accident investigation and ONLY for accident investigation. Your comment implies that we do not wish it to be used for that purpose. I suggest you re-read the foregoing comments.
I object to creeping misuse of a facility which we pilots magnanimously permitted to be in our workplace.

[Lonewolf_50]

Anyone in any profession that involves a professional responsibility for the lives of others automatically accepts the highest standard of professional accountability, both legally and morally. The best defense against a "legal witchhunt" is the truth. The CVR should be your best friend, not your worst nightmare...

Thank you, Doctor Pangloss. :cool:

Please go back a few posts and check out the problem as J.O. so succinctly put it, regarding a world that is not some Utopian ideal. The abuse of this tool is exactly what must not happen, and what is at risk.

[411A]

... because we will have "nothing to hide".

Wrong.
I attended a cocktail party years ago at one airline where, CVR data was played for all to hear.
With much laughter.

So, one had better keep ones opinions to oneself, otherwise...bad things can happen.
IE; your conversation on the FD, recorded for all to hear, can indeed come back to bite...sometimes with poor effects.
Beware.
I object to creeping misuse of a facility which we pilots magnanimously permitted to be in our workplace.
Basil must be out to lunch.
IE: magnanimously permitted.
Hardly...the CVR was required by regulation, not somehow permitted by pilot groups, and...there is nothing you nor anyone else can do about this.
Period.
ROFL....:}

[protectthehornet]

I am very much in favor of a Cockpit Video Recorder in addition to a Cockpit Voice/Audio recorder...and even a constant data stream of same.

I would feel MORE protected as a pilot, if the video recorder would ''see'' the same things I do on the instruments, out the window and with my fellow cockpitmate.

There are some fine pilots out there who have nothing to fear...even with casual joking, talking about good looking FA's and Flying Saucers...both getting quite rare!

I know a controller with US ATC...one of the biggest airports in the country...tracon...there was at least one case where the radar display did not show a target...computer glitch...but the computer recorded the target. And a controller got screwed.

But if the video recorder had been ''seeing'' as the controller was seeing, he would have been exhonerated.

I have a feeling, that some might benefit with this in the cockpit.

[BOAC]

The CVR is there to enable investigation of accidents and incidents. As long as a request for its release is scrutinised by suitably qualified people to suitably qualified people I have no objection if it is to aid safety. The onward release to the public at large via the media should not be allowed. The irony of this is that we, here, all shout for the 'CVR and FDR' as soon as an accident happens - we don't really need it, do we?

The Pearson case is difficult. If it requested in order to determine some legal matter which could penalise a party, then I could support its LIMITED release to those who actually need the information. It is the control of the recording and transcripts that is the problem. Not dissimilar to cases where, say, national security is involved and 'sensitive' information can be released to a presiding judge alone.

The current complete lack of ability of many in government, the military or public services to protect laptops, sticks, papers etc. or to be discreet however, argues against all the above.

[Nigd3]

411A
Not sure how the CVR recording was played at a cocktail party but obviously misuse/mismanageent of acquired data (on this occasion for entertainment) happens in all industries.
There are normally rudimentary interlocks to stop Johnny technician downloading the CVR data, for the hell of it, with the CVR in situ. These can obviously be overidden with the right knowledge but it still requires more than just hooking a laptop and cable to the CVR. To say it is there for all to witness is a little dramatic.
I agree about the part of pilots "magnaminously permitting" the CVR, or rather they did not do so. Like most avionics developed and then implemented in recent years, they were mandated by the authorities.

[J.O.]

SLFinAZ:

Please help me to respond by stating what it is you do for a living. I'd like to try (if possible) to give you a relevant example from your line of work that may help you to understand the very legitimate concerns we have about this dangerous legal precedent.

[aterpster]

draglift:

Hoot Gibson's version of events in his TWA 727 incident in 1979 was not believed by the authorities and he lost his job.

He not only did not lose his job TWA supported him throughout the investigation. Further, the FAA took no action against Hoot or the other two crew members.

It was the NTSB and Boeing that did not believe the crew. Both TWA and the FAA had a different take on issues with the 727 than did the NTSB and Boeing. Hoot later sued Boeing, the end result remaining confidential.

The fact that the CVR had been "accidentally" wiped didn't help his case and made him look guilty. Erasing CVRs at the end of the flight is contrary to many companies SOPs.

TWA company policy at the time was: if you could erase the CVR, you were free to erase it. In any case the TWA ground crew at DTW left power on the aircraft so the recorder was erased by that action alone.

[protectthehornet]

I still remember the Hoot Gibson thing as if it were yesterday. He even came on 60 minutes I think and said words to the effect of:

I'll bet every CFI in the country believes that I was screwing around up there...well I wasn't.

I was a CFI at the time and I didn't know how much true BS there is in aviation. And a huge amount of it comes from the FAA and the manufacturers.

AS I've seen the 737 rudder problem close up, I am now more likely to believe Hoot.

I hope he got some money from Boeing at least 3 times what his earnings would have been as a pilot.

I still remember him saying something like: I locked on to the moon for a reference to get the thing under control.

I still think of that when I fly with a full moon.

AND IF pilots were screwing around with the slats, boeing should have put a gadget in the thing to prevent it...like no slats above X altitude etc.

makes you think.

[DownIn3Green]

Arpster beat me to that one...he's very correct re:Capt Hoot...I've actually flown that A/C with Custom Air (out of MIA) in the late 90's...nice bird for a cargo 100 model...

As for CVR, the majority on this thread seem to agree with my viewpoint...no problem as long as it's used for accident investigation...

If this starts getting used for civil litigation, I say no way...

One yr in the mid 90's I was attending recurrent at AA's Facility in DFW...there was a video (any AA guys correct me if I misunderstood this) in the SIM, which was used to tape the sim sessions for "traing purposes"...

Apparently the AA pilot group objected (and rightly so, IMHO) and the videos were disabled...

[gulfairs]

The CVR must only be used for accident investigation and analysis.
It would not be too difficult to place a Caveat on all CVR's that the contents can NEVER be used for litigation against the company or the crew.
Who give a damn about the press and news media, provided it enhances flight safety.
The news media can call a rose by any name, and still believe that Joe Public
is stupid enough to believe them(the media)

[andrasz]

A non-flyer here, but someone reasonably well seasoned in operational and legal aspects of aviaton. My 2c's worth opinion:

The actual recording is SOLELY for the purpose of advancing aviation safety. No CVR recording should ever be released from the small circle of professionals who are suitably qualified to interpret them. In many jurisdictions, there is legislation to such extent.

Following an accident / incident a transcript is made from the recording, where a best effort is made to not only literally transcribe, but place into context whatever was being heared (including other noises), and synchronise with data from the FDR, ATC tapes and other sources. The transcript will not be a full copy of every word said, any private discussion that has no relevance to the sequence of events will be edited out by a responsible investigation board (of course if such discussion becomes a distraction and a contributing cause, that is a different story - see Buffalo). This transcript SHOULD be a part of any official investigation report, for the benefit of al of us (like it is in many jurisdictions). The corollary is that the investigation report, being a public document, may later be used and interpreted in a civil proceeding.

The source of the problem under discussion is that in Canada even the edited transcripts are not made public, which I believe to be wrong. Consequently there may be a reasonable demand from a civil court proceeding to produce CVR evidence, especially if such evidence is known to exist.

In the particular case, my understanding is that the reason the CVR recording is requested because of the presence of an additional person in the cockpit. The topic is carefully avoided in the accident report, I have gone through the whole document and only found one small print reference, saying that three non-revenue pax were on board, two on cc jumpseats, one in the cockpit jumpseat. This fact is not discussed at all in the accident analysis, my assessment is because this was not pertinent in any way to the accident. (Ie. there was no unnecessary talking, the third person was not considered to be a distraction in any way). It would have been probably more reassuring to have the report explicitely say this, especially as we know of several accidents where an additional person in the cockpit was a contributing cause. In this case indeed there appears to be a part of the story missing, and I could understand anybody being a part of the litigation process to be interested in such a potentially relevant piece of evidence.

It is perfectly normal for most european operators to allow colleagues on staff tickets to ride jumpseat, at the discretion of the captain. Some even have a quick standardized briefing in place (oxygen system, clean cockpit rule under 10000', etc). However in some jurisdictions the 'no unauthorised persons in cockpit' rule is used (or rather abused) to such extent that even fully qualified and licensed flight crew, if not actually on the crew list, are considered 'non authorised' (eg. UK). In more sane jurisdictions, any person in the cockpit is authorised if present with the consent of the operating crew, after all they ARE the supreme authority once chocks are off.

[aterpster]

DownIn3Green:

...I've actually flown that A/C with Custom Air (out of MIA) in the late 90's...nice bird for a cargo 100 model...


My recollection was that the aircraft was a 727-100 (727-131 in type for TWA) passenger bird. We had a few 727-131QCs, but Hoot's airplane wasn't one of those; at least not to my recollection. I flew it shortly after it returned to the line. My F/E took me on a walk-around and showed me the quite visible small ripples in the skin back near the aft end of the fuselage.

It must have been converted by someone after it left TWA's hands. Or, perhaps my memory has faded. It was only about 35 years ago.:)

[Feathers McGraw]

Aterpster

The CVR in the Hoot Gibson case was erased due to a slow transfer to external power, something that was known about and apparently the NTSB chose to ignore.

In any case, the aircraft was not shut down for a longish period after landing, the bit of the tape the investigators wanted was overwritten during this time.

It was not possible to erase the recorder deliberately, the damage to the undercarriage meant that the squat switches would not close and so the erase mechanism would not work. The NTSB also chose to ignore this, accusing the crew of deliberately erasing the evidence.

There's a good discussion of this in Stan Stewart's book "Emergency - Crisis in the Cockpit".

A quite disgraceful sequence of events in my opinion, the investigators should be ashamed of themselves.

[Los Endos]

As others have suggested, the data from the CVR and the FDR are there for the professional analysis of any incident. The findings gleaned from therein will then be integrated into the subsequent report which then becomes freely available. To release raw data for the purposes of litigation to a court of law populated by people, including the judge, who have no concept of the workings of an aircraft is an unsound step which has no relevance to the future improvement of flight safety.

[blind pew]

I have worked under three different management philosophies ranging from one group of cowboys that I wouldn't trust my family to fly with to one that I informed after operating outside of the MEL.

I have also taken home a flight recorder tape and destroyed it after a drunken captain allowed the steward to ATTEMPT to fly the aircraft. I was a very junior copilot in the days that we were only there to assist the captain.

I have a colleague who had an engineer wipe the FDR on a large Boeing after a similar misdemeanor went T*ts up.

I believe that all CVR and FDR information should be available to a worldwide safety organization which would report their findings to airlines/manufacturers/aviation authorities and unions.

Unfortunately there is far too much vested interest in aviation and I know far too much about illegal operations.

I had a colleague climb out onto a snow covered Boeing wing during taxiing after the crew told him to stop whingeing about the fact that they hadn't deiced. He was arrested and imprisoned for a couple of days before diplomatic pressure was put onto the authorities. My next visit there I watched a snow storm fly off the wing during rotation from another of that companies airplanes.:ugh:

I have had contact with three different aviation authorities and one military authority in my career and have had a 50% success rate with an appropriate response.

I recently asked an aviation authority about EMI (or PDI ) after having an argument with an ignorant passenger who decided to turn is I pod on during approach. The FO told me that his employer put pressure on them not to report incidents as it delayed the return flight.:ugh:

Two emails apparently were not received by the authority. Six phone calls later I spoke with an flight operations inspector whose first question was do I have a grudge against the operator!

As far as I am concerned the more information that is available the more we can stop the illegal operations, dangerous flying practices, substandard aircraft design /manufacture and the pilots who are incapable of manual flying of sophisticated (and sometimes flawed) equipment.:oh:

Fortunately I have done them/ watched them/ flown them/ and taken over the controls.- And survived which some of my mates haven't!!!!

[aterpster]

Feathers McGraw:

A quite disgraceful sequence of events in my opinion, the investigators should be ashamed of themselves.

I was not aware the gear switches were damaged, thus precluding a manual erase. It seems that the NTSB persecuted the crew as opposed to investigating them. I don't suppose industry undue influence over a government investigatory agency had anything to do with it....naw.:hmm:

[D'vay]

125.227(f)

In the event of an accident or occurrence requiring immediate notification of the National Transportation Safety Board under 49 CFR part 830 of its regulations, which results in the termination of the flight, the certificate holder shall keep the recorded information for at least 60 days or, if requested by the Administrator or the Board, for a longer period. Information obtained from the record is used to assist in determining the cause of accidents or occurrences in connection with investigations under 49 CFR part 830. The Administrator does not use the record in any civil penalty or certificate action.

I appreciate that this is from the american rule book, I am assuming that the french/canadian FAR's are similarly written. So, my interpretation, is that there is nothing here that would actually prevent the information being passed to another authority/legal hearing, however, the Pilot's are protected from litigation from the FAA, I.E. ATC may be able to use the information to prove beyond reasonable doubt that they are to blame, and at the same time, the pilot's are protected from and litigation following this incident.

[KRviator]

D'avy[/n], the way that reads to me is only the [b]FAA doesn't use it for any punitive action...If the CVR/FDR data was released to a third party, then they are free to refer to the data as part of the legal process, be it a civil action, or, as happened in Australia not too long ago, the local copper's trying to charge a train driver for causing a derailment.

FWIW, I'm certainly not opposed to having CVR's (as we've now got them in some trains as a "trial"), or DFDR's, so long as the data can only be used as part of the accident investigation process. That a lawyer can now subpoena a CVR tape as part of an unrelated court case is deeply disturbing.

[CargoOne]

Let's make it clear: for unknown reasons pilots are very rarely sued and imprisoned in most jurisdictions even if they were a root cause of accident (90%+ of all accidents worldwide). Bus drivers, train drivers, truck drivers, ship captains are all doing the same job and they are indeed bearing full responsibility for their actions. In fact, ship captains, especially in the case of large ships, are bearing full responsibility even they are not a direct controls and in some cases even off-duty resting in their cabin. All of them a quite likely to serve a sentence in prison if found guilty.
All what pilots risk is their job? That's similar to McDonalds then...

[rottenray]

Time for us to brush up on our American Sign Speach, problem is you need both hands for a lot of the symbols, how long before vidio link comes to the flight deck? Anyone have any thoughts on this as it has I belive been proposed by at least one authority?

If you're really a commercial pilot, please tell me this was posted on a bad night. There is really so much wrong here that I don't even want to think about it...

[clunckdriver]

In that case just dont think! But you have proberbly mastered that already! {it must be awfull to go through life with no sense of humor} And yes, if you read my public profile you will see that I have flown a little bit, still doing it in fact, now take a deep breath and relax, OK?

[Jimmy Hoffa Rocks]

What about the ATC tape ?

They want to prove there was someone in the jumpseat ?

The CVR is for the cause of the accident and for the TSB.

Not for defending personal interests and in lawsuits

[Legalapproach]

This is a very tricky topic as a degree of confidentiality is an important element in open and honest reporting for flight safety purposes.

However, a blanket ban on using CVR/FDR readouts could lead to potential injustices. A few years ago I successfully defended an atpl holder on reckless endangerment charges where a single line from the FDR printout (My god it took ages to find it) confirmed everything the pilot said about the engine power parameters on the particular flight. The CAA did not believe his assertions and nor would the jury in all likelihood until presented with the evidence in black and white.

[DownIn3Green]

Legal...once again, that case wasn't civil litigation, but most likely enforcement action...

Did anyone notice that the CVR's from the 9/11 flts were not released to the public?...only the families got to hear them...now the TRANSCRIPTS are a whole other situation...

[aterpster]

DownIn3Green:

Did anyone notice that the CVR's from the 9/11 flts were not released to the public?...only the families got to hear them...now the TRANSCRIPTS are a whole other situation...

The original, never to change, agreement between ALPA and the FAA and NTSB was that the actual recordings would never, ever be released. (circa 1964)

Bad mistake trusting government agencies.

Worse mistake trusting the courts to honor such agreements.

As a new F/O in 1964 I flew with captains that, although they wouldn't pull the CVR CB, they had a great device to defeat the area mic. In retrospect, they were probably right....sadly.

[DownIn3Green]

Arpster...once again we seem to agree...

Recordings are never to be released for all of the reasons all ready mentioned on this thread...

However, once the transcripts are used in the hearing, they become a part of the pulbic domain...

There's a big difference between reading on "paper" the "last words" (i.e-"We're $crewed...Good-by") and actually listening to the words spoken by the deceased flight crew...

I know some recordings are available on the web, and IMHO that's not right...PERIOD!!!

As far as your Captain having a "great device" to defeat the effectiveness of the FDR...I think I had a pretty good way as well, if needed, (which thankfully I never did in 24+ yrs, 11 in the Left Seat)...a very seasoned Cap't showed me that one...

[aterpster]

DownInThreeGreen:

As far as your Captain having a "great device" to defeat the effectiveness of the FDR...I think I had a pretty good way as well, if needed, (which thankfully I never did in 24+ yrs, 11 in the Left Seat)...a very seasoned Cap't showed me that one...

I think you meant CVR, not FDR. The technique defeated only the area mike, not the VHF comm or interphone channels. In that way no one could be accused of pulling the C.B.

I don't believe anyone ever felt the transcripts wouldn't end up in court on occasion. But, the rules in the U.S. greatly limit them as evidence and the NTSB employees are exempt from testifying about their content. Only the parade of so-called experts can make such testimony which is often easily rebutted by other experts.

It's the actual recordings that were supposed to be never, ever released.

Moral: never trust government "promises." Even though their intentions may have been good at the inception, time tends to pour a load of road pavement down into dark places.

I never defeated an area mic when I was flying PIC. I felt it served no useful purpose and could serve to my detriment under the "right" circumstances. In fact, if something went wrong that was known to be a problem it provided an opportunity to make brief editorial comments, which could take the investigation in a different direction.

[Spooky 2]

I seem to recall that the plastic cork from a cheap Champagne that we served fit niceley over the CAM back in those days. :hmm:

[lomapaseo]

It's the actual recordings that were supposed to be never, ever released.


I think that you will find that the words are not that explicit and even then only apply to the NTSB.

From memory, I can't recall a US accident release since the Delta B727 accident in Dallas and that wasn't released to the public by the NTSB.

[aterpster]

Spooky 2:

The red plastic cannon plug protector was a perfect fit.

[aterpster]

lomapeseo:

From memory, I can't recall a US accident release since the Delta B727 accident in Dallas and that wasn't released to the public by the NTSB.

Actual tape? Transcripts have always been released.

I worked on two air carrier accidents and we were not permitted to hear the actual recording. Only the CVR group had access to the recording.

[aterpster]

From the NTSB's website today:

"A CVR committee usually consisting of members from the NTSB, FAA, operator of the aircraft, manufacturer of the airplane, manufacturer of the engines, and the pilots union, is formed to listen to the recording. This committee creates a written transcript of the CVR audio to be used during the investigation. FAA air traffic control tapes with their associated time codes are used to help determine the local standard time of one or more events during the accident sequence. These times are applied to the transcript, providing a local time for every event on the transcript. More precise timing for critical events can be obtained using sound spectrum software. The transcript, containing all pertinent portions of the recording, can be released to the public at the time of the Safety Board's public hearing.

The CVR recordings are treated differently than the other factual information obtained in an accident investigation. Due to the highly sensitive nature of the verbal communications inside the cockpit, Congress has required that the Safety Board not release any part of a CVR audio recording. Because of this sensitivity, a high degree of security is provided for the CVR audio and its transcript. The content and timing of release of the written transcript are strictly regulated: under federal law, transcripts of pertinent portions of cockpit voice recordings are released at a Safety Board public hearing on the accident or, if no hearing is held, when a majority of the factual reports are made public."

http://www.ntsb.gov/aviation/CVR_FDR.htm (http://www.ntsb.gov/aviation/CVR_FDR.htm)

[lomapaseo]

Actual tape? Transcripts have always been released.

I worked on two air carrier accidents and we were not permitted to hear the actual recording. Only the CVR group had access to the recording.

Apologies for the confusion. I meant the actual recordings, not the transcripts.

The NTSB has sometimes permitted " sanctioned (by the CVR group )transcribed snippits to be released to the public even before the official release at a hearing months later. examples: Valujet and TWA800.

A lot of this is protocol. I really don't think that there is specified punishment other than losing your job. Or worse yet, incurring the wrath of the pilot community.

[johns7022]

'Two pilots' unions, the Air Line Pilots Association and the Air Canada Pilots Association, representing nearly 60,000 pilots around the world, intervened in the case, arguing the cockpit is their inner sanctum, a private workspace comparable to an office.'


Translated: Because hiding the truth is one way in which we can cover up our mistakes...part of a whole spectrum of techniques to garner job security at all costs...

-----

People who are good at what they do, don't mind noon day light microscopic scrutiny....

I am personally not for Orwellian surveillance in the cockpit, but if that is what it's going to take to make an airliner safe...not through good hiring practices, not through professionalism, but treating adults behaving badly like little kids that need to be watched 24/7...so be it....

[PJ2]

johns7022;
Translated: Because hiding the truth is one way in which we can cover up our mistakes...part of a whole spectrum of techniques to garner job security at all costs...

-----

People who are good at what they do, don't mind noon day light microscopic scrutiny....
Please read through the thread before commenting. This view is naive and uncomprehending of the many issues involved.

PJ2

[Mel Effluent]

]A new EU law to ensure the independence of air accident inquiries was approved by the European Parliament on Tuesday. The law also requires airlines to produce a list of those on board the plane within two hours of an accident. Before a flight, passengers will be entitled to name a person to be informed in the event of an accident.
The new EU regulation will ensure that a safety investigation into an accident is conducted free of pressure from regulatory or other authorities. Any statements taken from individuals by a safety investigator, as well as voice and image recordings inside cockpits and air traffic control units, will be used only for safety investigation, unless there is an overriding reason for disclosure to the judiciary. This will ensure that people can testify without fear to the safety investigators, whose purpose is not to attribute blame but to establish the facts.

As is the case at present, the safety investigation authority will be obliged to make public the final accident report "in the shortest possible time and if possible within twelve months of the date of the accident or serious incident".

Each Member State must set up a civil aviation accident emergency plan and ensure that all airlines based on its territory have a plan to assist victims of accidents and their relatives.



The full text is at: Air accident investigation: Parliament lays down strict criteria* (http://www.europarl.europa.eu/news/expert/infopress_page/062-82933-263-09-39-910-20100920IPR82932-20-09-2010-2010-false/default_en.htm)

Looks like a sensible approach from the EU (for a change!).

[andrasz]

As I mentioned a few posts earlier, but it seems it did not quite filter through:

A TRANSCRIPT of the CVR contains FACTUAL INFORMATION pertaining to an accident / incident, wchich is compiled by a panel of experts, over a period of time, often including lengthy deliberations on the identification of even single words. This should be public domain for the benefit and learning of all, and it is in many jurisdictions.

The problem is that in Canada even the transcript is protected by law, and is not made part of an investigation report. In some cases (like the one under discussion) this may raise the suspicion that certain factual information available on the tapes was witheld by some party with a vested interest. This may or may not be the case (probably not, the composition of the CVR group should be a guarantee), but certainly the public availability of the CVR transcript would help clarify things.

I ASSUME the matter is not proving that a third person was in the cockpit (that is actually admitted in the report), but whether the presence of that person was pertinent to the accident in any way. That information would only be available from the CVR.

My personal view is that it is about time Canada, providing global benchmark standards in so many other fields, grows up to the rest of the word on this matter.

[Ex Cargo Clown]

Just out of interest, for anyone with a knowledge of International Law, does the CVR belong to the state the aircraft is registered in? If so, would Canada not need to approach France to ask for French property?

If this is not the case then could a non-aviation regulatory authority demand access to QAR data, say for H&S or Noise purposes.

This could be a legal minefield.

[johns7022]

Well, it's pretty clear I need to come into line with the consensus, and not be such an iconoclast......so I will agree with the consensus in here that we don't need accountability and transparency in the cockpit...better to keep everyone in the dark after an accident....

Now where's my logbook...I need to go burn it....that way I can parker pen in 200 hours, borrow $50,000 so I can go buy a seat in an airliner....

ahhhhh... nice to be part of the family now...not be such an outsider......feels great....

[andrasz]

...does the CVR belong to the state the aircraft is registered in?

No, the CVR like any other aircraft part or integral component is the property of the owner (airline, leasing company, etc.). The actual recording is owned by the operator (just like flight logs, maintenance records, etc.).

The relevant authorities may ask for (and even forcibly take) any CVR recording within the applicable lesislative framework (in all juristictions I'm familiar with, only with cause, related to reported accidents/incidents).

Per ICAO rules, the competent authority is always of the state on/over whose territory the accident/incident happened, irrespective of state of registry. If the event happened over international waters, it is usually the authority of the state of registry. The competent authority has full rights over the recovered recorders and recordings, according to their own laws and regulations (the source of much frustration in some investigations, just look at the recent Ethiopian accident at Beyrut).

Most 'civilised' authorities will invite the authorities of the state of AOC/registry/aircraft manufacturer to be a party to an investigation either actively or as observers, but this is not a legal requirement, and the authority of the accident state will remain the sole responsible for the investigation and the subsequent report.

[PJ2]

johns7022;
Well, it's pretty clear I need to come into line with the consensus, and not be such an iconoclast......so I will agree with the consensus in here that we don't need accountability and transparency in the cockpit...better to keep everyone in the dark after an accident....

Now where's my logbook...I need to go burn it....that way I can parker pen in 200 hours, borrow $50,000 so I can go buy a seat in an airliner....

ahhhhh... nice to be part of the family now...not be such an outsider......feels great....
I see you have taken my comment personally and have chosen to respond with sarcasm instead of curiosity.

The notion I was trying to convey was not "conformity" or "consensus" of views or "going along to get along" in a forum but the importance of understanding the investigative process and the reasons behind the protection of certain (raw data) information from indiscriminate release and not merely the offering of an unsupported opinion.

Perhaps you might imagine what CNN would do with original CVR information. We already know what the legal profession will do with such information and it is against the use of flight safety information for prosecutions that is the entire point of this thread.

The reasons are solidly-based; a differing opinion is welcome because disagreement often takes understanding forward but such "non-conformity" must be based upon reasons-why. You don't provide those reading your post with anything substantiating your opinion.

You say (and still do, I see) that "special interests" and "hiding flight crews' mistakes" are behind the "intentional, legal secrecy" of the CVR. Arguably a very few countries run their affairs that way but not the majority. Most countries adhere to ICAO Annex 13 (http://www.scribd.com/doc/10862579/Icao-Annex-13-9th-edition) which describes how the investigative process is to be conducted. Take a look specifically at Chapter 5.

You say that we need flight crews to be "accountable" and need "transparency" in the process but then proceed to equate the expressed need to protect the CVR with the opposite of these laudable requirements.

There's always a counterpart for such processes: "Transparency and "accountability" for whom? - any law or media outfit that comes along?, or a duly-constituted group of experienced experts with only one goal in mind which is to find out what happened? The difference is what the thread is about.

Because accountability and transparency don't come in the package you want or expect does not mean that these principles don't apply. In fact, SMS broadens accountability beyond the cockpit, to the organization where an "accountable executive" is appointed.

There is indeed transparency in the investigative and reporting process where it concerns an aircraft accident but for reasons which should be readily understood, not for just anyone who comes along with a gripe or a lawsuit. The aviation industry is as safe as it is today precisely because of the investigative process being discussed here and that is what is being protected.

There is no conspiracy to hide information from the flying public. There is the need to protect such information from use in courts because it is intended as safety information only. As I stated previously in this thread, if prosecution is to go forward, do it on independently-discovered evidence and don't coat-tail on information that is intended to enhance flight safety. Use that information to prosecute crews and that information will, in one way or another, dry up very quickly. Is that what you desire?

If you still have solid reason to say what you did, let's hear it because an institutional hiding of evidence from an accident investigation represents a very serious matter.

The goal here isn't consensus, it is informed disagreement. I made the suggestion to read the thread because both your posts show that you don't understand these processes and I thought a reading of other contributions would broaden your understanding, ...if you're curious.

PJ2

[CargoOne]

There is the need to protect such information from use in courts because it is intended as safety information only. As I stated previously in this thread, if prosecution is to go forward, do it on independently-discovered evidence and don't coat-tail on information that is intended to enhance flight safety. Use that information to prosecute crews and that information will, in one way or another, dry up very quickly. Is that what you desire?

PJ2, I know your way of thinking is shared among many pilots, but for all other professionals it is a twisted ill logic which have only one goal - hide the evidence and escape from prosecution.

[PJ2]

CargoOne;

"Twisted" is an interesting adjective to apply to a system in which the resulting success in terms of safety levels is nothing short of spectacular when compared with how other professions handle events, untoward outcomes, accidents and fatalities.

The main comparison is the medical profession which, seeing this very success in terms of preventing accidents and fatalities, is adopting aviation's methods of prevention through appropriate monitoring, data-collecting and preventative investigation.

As has already been discussed, shipping, rail, public transport and even the automobile industry is following aviation's long history of dealing with these issues directly and successfully, and not, as you claim, "hiding evidence and escaping prosecution".

This doesn't mean that aviation's approach to these issues is without fault or immune to the influence or the outright pressures of special interests; it is a human activity, after all.

Take a look at the evidence, not what is merely written or said. The success of this approach to safety is not due to mere views and opinions shared by pilots. This success is due purely to our industry's willingness to look at the nasty bits and do something about them before they kill or cost.

Would that such an enlightened attitude were resident in other professions and industries.

While litigation can, in the short term, (and sometimes even does) lead to change, it also engenders a strong culture of silence both corporately and professionally. That quickly leads to the very activities of hiding evidence which you complain aviation is trying to accomplish through its processes of protecting safety data. By comparison to a rational approach to accident investigation and prevention, is this unenlightened litigious approach not the very definition of "twisted"?

There is no perfect system, nor is there a system invented which always avoids unfairness or even abuse.

However, if you prefer a system whether transportation-related or healthcare related, etc, which runs on the principle of "tombstone safety" and which characteristically "punishes the perpetrators" before knowing why, and which prefers discovery and prosecution to learning, you would do well to avoid using such a system.

PJ2

[aterpster]

Everyone: This thread exists because of an accident in a first world, first rate country.

Alas, as to the horrible crash in Islamabad, we can only speculate.

And, as someone interested in aviation safety and learning from air carrier accidents, I am saddened by the attitude of the so-called competent authorities in the Islamabad case.

[andrasz]

Well said, aterpster!

Another element that seems to have been overlooked in the thread: from what was said so far it appears that the reason a court proceeding is requesting the CVR recordings is to DEFEND one of the involved parties (Canadian ATC - who based on the accident report did nothing wilfully wrong, but was not quite up to speed with the unfolding weather scenario either...) from litigation, rather than to prosecute anyone. They are doing so because they believe certain FACTUAL information was ommitted from the accident report.

[PJ2]

I see today that the Colgan case is to be heard March, 2012, (Jury selection in March 2012 for trial on Flight 3407 - City & Region - The Buffalo News (http://www.buffalonews.com/city/article212248.ece)). The judge in the case will rule on whether the cockpit voice recorder will be played in open court so, "Jurors would benefit from hearing the tape because it will shed light on the pilots' demeanor and emotions during the last moments of the flight, and it is also possible that the screams of victims would be heard, Russ said.", ("Russ" is a lawyer for families of the victims.)

Perceptions of hearing/seeing and resultant psychological "conclusions" are interpretive acts, open to well-understood manipulative strategies by those, like advertising people, politicians and lawyers, whose job it is to understand the human psychology of such persuasive tactics.

The "principle", if it may be called that, behind playing the actual CVR is that of, "getting closer to the truth" but the approach is emotive and even sensational. For legal purposes, finding out the "truth" is not possible without the interpretive act and that is the process which is open to manipulation. The jury will not learn the "truth" from hearing the actual CVR, because, like any eye/ear witness, they have no experience with which to "hear" the conversations and therefore context within which to correctly judge the crew's actions.

That enormous trauma was experienced by the victims, all victims including the crew, is not in doubt, but "hearing screams" does not establish truth of what happened which is what the collection of flight data is intended to do.

Bringing in "expert testimony" only removes that process by one step - it is still an interpretive act using data collected for safety to prosecute a legal case.

Such interpretation is a valid process when carried out by trained and experienced accident investigators who have no interest in the outcome of any prosecution. Investigators go where the data leads them, and while no human interpretive process can "uncover the real thing", (there is no "real thing" underneath, there is only interpretation alone), the process of investigation is informed by vastly different understandings than the legal process.

Using data collected for safety to prosecute a case against a crew or a company is simply creating a Trojan Horse.

andrasz;
from what was said so far it appears that the reason a court proceeding is requesting the CVR recordings is to DEFEND one of the involved parties (Canadian ATC - who based on the accident report did nothing wilfully wrong, but was not quite up to speed with the unfolding weather scenario either...) from litigation
DEFEND [sic] and prosecute are bed-partners. It should be clear to anyone who thinks that using safety data for "defence" (for whom?) is justified, that such a door swings both ways, and next time that same justification will be used to prosecute a case which, "in the public interest", may appear to some judge to be sufficiently "egregious" to permit "special considerations" in the use of safety information for legal ends. Once the barn door is open, all is possible.

The objection here is not to prosecutions per se, (another, discussable matter), but to the use of safety information for legal action. If the parties want to prosecute, then find their own data from independent means.

Some say that pilot associations have no choice in the matter because such data-collecting is mandated by law. That is a naive argument. The day that door to which you refer is opened by the courts is the day that will signal a shift in the acceptability of the already-deep invasions into the lives of flight crews by the data-gathering process.

Pilot associations and pilots endure such robust invasions of their workplace for one purpose only and that is to increase the safety of their industry and their operation.

Legal or not, once such data begins to find its way into prosecutions, the industry will witness a turn-around in the pilot communities' willingness to endure such processes and we will see first, resistance, and then a determined lobby against data collection slowly develop with a commensurate increase in accidents because not-knowing-why but winning a legal argument is the preferred outcome.

We are seeing very strong resistance by pilot associations to cockpit video recording for these very reasons. While the investigative utility of such a tool would be invaluable, with the courts even in first-world countries now willing to endure such arguments as we have seen in the Toronto case and with Youtube enthusiasts waiting to post, the advent of such technology is thankfully a very long way off.

The other, more important aspect which hasn't been mentioned in the thread is the notion of "criminal behaviour". Such a notion is related to time. Here is why: In the short term, we may convince a jury that a crew "engaged in criminal behaviour" of some sort and we may use collected safety information to "prove" the case. The result of such a trend will be as described herein, and such data collection will, over time, (decades), be curtailed. Where then is the real criminal act?

PJ2

[lomapaseo]

To sum up, the camel's nose in the tent precedes the camel itself.

This of course is not the first time and I'm sure that subjective arguments will be available to justify when it's OK and not OK to take this kind of safety data source into a court of law to subjectively argue for "justice" for some party.

If we (collectively) wish to draw the line then I submit that it must be codified to the extent that it will be recognized in the law of the land. Having pilot (sic) or other groups, agree in principal does nothing to change the status quo

[SLFinAZ]

But the CVR should be played in open court. Colgan is at the very heart of a tremendously complex issue that will only get worse. The simple reality is that aviation safety is becoming more and more dependent on automation. The primary pitfall is the degradation of both actual hand flying and professional judgement. It's clear that more and more accidents are the result of crew allowing the equipment to do the flying...and all to often the thinking.

The illusions some have that flying is somehow safer are just that illusions. We need higher standards and that means more training and higher pay. It won't happen unless multiple incidents of professional misconduct (and thats EXACTLY what Colgan was) are handled in an open, transparent and expensive manner. I hope provisions exist for the award of heavy punitive damages against Colgan.

[DownIn3Green]

Slf...not sure where the "professional misconduct" is...Mistakes and poor airmanship, yes...but "misconduct"???

Stick to sitting in the back...:ugh:

[chuks]

Golly, SLF, you wouldn't by any chance be some sort of shyster, would you? I just have to ask because you seem to have that coupling of money with safety that only they seem to see. What, you are going to scare people into operating safely?

"Crash and die and I am going to sue you for every penny!" Sorry but I really don't think that this unfortunate crew would really have focused on the matters at hand any more closely even if they had known that someone should be having a very big payday coming thanks to their mistakes.

When a fat cheque for punitive damages lands in some shyster's pocket, then what? You mean he turns around and gives the money to some foundation working directly for improved safety? That is news to me; I thought the simoleons went to buy him flashy stuff and "Screw the rest of us," who end up stuck with the bill in the form of higher air travel costs.

I don't think that such operators should get away with this sort of stuff but I really don't think that letting hordes of blood-sucking lawyers run amok is the way forward either.

If we hear you scream on the CVR tape then let us hope that is just because you rammed the plastic fork into your thumb trying to get that bullet-proof bag of peanuts open so, "Safe journey."

[PJ2]

SLFinAZ;

You are of course entitled to your personal opinion, and that is all it is.

You range over a number of current, high-profile issues without understanding and without gathering your thoughts carefully then setting them out in your post. In doing so you have not addressed the issues raised nor refuted the arguments made in support of the present approach to collecting and using safety information. There is a long historical approach to this work which has proven very successful in this industry; - you need to make yourself aware of such history and processes before launching. Nor have you demonstrated any success coming out of the punitive approaches you advocate.

Cooler minds need to guide this process so that accidents like the Colgan accident do not occur again. Your approach, while offered with, I believe, good intentions, (prevention through punishment), will bring about exactly the opposite effect, leaving the commercial aviation industry, and those we carry, wide open for another such accident.

The approach is not a "get-out-of-jail-card" but traditional enforce-and-punish approaches are not the way to continue the improvement in flight and passenger safety.

Please think about this and especially re-read the thread carefully. If you can still state without hesitation or emotion that punishing-rather-than-comprehending will make the industry safer, then you need to start researching this and providing the forum with information which supports such a view, because the evidence is entirely contrary to both your understandings of how the industry makes itself as safe as it is, and your opinion in particular.

Offered with respect,

PJ2

[PBL]

What is most interesting about this thread, which deals with a very important subject, is that there has only been one comment from a legal expert, and that brief and restricted.

I don't think the issues can be solved. I don't know whether they can be resolved, and even if they can be, I don't know whether a resolution can be established for the duration or if it has to be continually renegotiated.

PJ2 is quite right that the "discourse of safety/accident investigation" is different from the "discourse of responsibility" (I avoid the perjorative connotations of the "b" word). Both are human negotiative processes, and both can proceed apprropriately or be abused, and are, regularly.

Anyone who has been involved in civil court proceedings knows, as a colleague of mine memorably put it in an address to the International System Safety Conference in Ottawa in 2004, that such proceedings are not primarily about finding out what went on or what is going on, but simply about reaching a conclusion by some means or other. My take is that the point of view "if I/you do everything properly, then I/you have nothing to hide, and therefore I/you can have no significant objection to data in which I have an interest being made public" does not survive any personal experience with antagonist proceedings, legal or administrative.

Let us put some flesh on the bones of PJ's contention that these are different "discourses" (or "negotiations", or whatever your preferred technical word is).

The fact is that pilots, and controllers, work a safety-critical job in an environment that is almost never optimal and often involves contradictory requirements. They have chosen to do that job, and each and every one will have some method of resolving those contradictory requirements, by adhering to some and violating others. And when a person ends up in antagonist proceedings, hisher antagonist is going to emphasise the requirements that heshe did not fulfil (and there are inevitably some).

For examples, think of the constellation of issues around fatigue, the commute to base, low pay, and family stability obligations, which almost every "commuter airline" pilot has to try to resolve somehow. (I am sure many if not most would go for a relaxed commute the day before, a stay overnight at the Airport Hilton, and a decent breakfast before starting the day's - or night's -work, but that has traditionally not been on offer. Does anyone seriously think Colgan's accident pilots rode jump seats to work in the middle of the night and slept on couches because they preferred to?) And if that doesn't grab you, then think about how pilots and controllers cope with malfunctioning equipment, such as the controllers in the Amazonas involved in the Legacy/GOL mid-air collision that were supposed to be working in the environment of (according to the authorities) "full radar coverage" which clearly wasn't. And if that doesn't grab you, then maybe it is time to familiarise yourself with Jens Rasmussen's work on "migration to the boundary", which is his word for adapting to contradictory constraints.

So, a "safety" discourse will attempt to consider this environment, how an operator adapts, and whether this adaptation is appropriate or not. In reference to Colgan, it would consider, for example, making employers responsible for providing adequate rest accomodation (a hotel room) to pilots before a shift, at no cost to the pilot, and introducing measures to ensure a pilot uses it.

A "responsibility/blame" discourse will point out that the pilots broke company regulation concerning rest time, and may well attempt to argue that the pilots thereby brought themselves into a state of fatigue. If they had "deep pockets", there would follow the argument that they are wholly responsible and therefore liable for the damage they caused. Since they did not have "deep pockets", it will be interesting to see how the argument then progresses. It might try to put responsibility on the employer, who will then argue that it has clear working practices in place to which their employees contractually obligated themselves, that the working practices were adequate, and that the employees violated their obligations.

It is obvious to me, and, I would argue, should be to others, that these discourses are different.

PJ now wants to argue from this, and I think we should all be able to see why, that certain kinds of data, which everybody agrees is essential for the safety discourse, should be protected from the responsibility discourse. It is, I hope, easy to see on the basis of the foregoing considerations why this is desirable.

However, and this is a very big but, the discourse of responsibiity has three thousand years of history behind it, some two thousand nine hundred more than the discourse of aviation safety. And has developed certain principles. One of these principles is that which I will crudely call disclosure (our legal colleagues can correct me if this is the wrong word). I put it crudely as follows: if there exists evidence pertaining to a case, then parties to the case have a prima facie right to examine that evidence. Further, they have equal right to the evidence; if one has access to it, then all.

Now, the rules regarding what is "evidence" and what is not are pretty complicated, and by no means the same in all jurisdictions. Hence disputes about "admissible evidence" (that phrase really just means "evidence").

Now, it is all well and good for a legislative body (Parliament, Congress) to decide, and enact a law, that no one shall have access to a particular document (by which I include all manner of stored record of past events) such as a CVR recording. But the legal principles above are much older and more well-established, and the judiciary can well decide that plaintiff's or defendant's fundamental rights trump any recent legislative decision to keep some things secret, especially if it can be shown that that secrecy is somewhat threadbare.

That is the nub. That is my take on what PJ and others are worried about. It is not clear to me that this conflict has any solution.

PBL

[Nigd3]

SLFinAz

I think you should maybe read the paper "Punishing people or learning from failure" by Sidney Dekker. You will probably find it quite interesting and thought provoking.

It is available on the web for free and just needs a google search

[Ex Cargo Clown]

PBL, I'm not too sure what the Canadian legal system is like, but I do know that Tort Law can be horribly complicated and most generally tried by lay people, who may not understand the vagaries of aviation.

To be judged by our peers is fair enough, to be judged by those who have absolutely no knowledge of aviation at all? Is that fair?

Consider aviation to be a field of academia, would it be fair to have my paper on chemistry dissected by a non-chemist, who will then judge if it were correct or not?

[PBL]

Ex Cargo Clown,

I'll pass on whether it's fair.

It is, however, traditional for at least 1500 years in English law, which relies heavily on precedent. It's hard to beat 1500 years.

PBL

[J.O.]

'Tis worth trying though. The alternative, i.e. the dropping of tools until the recorders are removed, would be very bad for aviation safety in the long run.

[BOAC]

The judge in the case will rule on whether the cockpit voice recorder will be played in open court - I could be persuaded, I think, to allow a closed 'play' in certain cases (not commenting specifically on any particular case) to those involved in the legal action ie lawyers, judge and jury, but I can see no justification for playing to an 'open court' who would have no part in the case.

[Mad (Flt) Scientist]

To add to the comment on the fairness of trial by commoners versus professional peers : the exact same issue arises for every single profession, not just pilots. Doctors, engineers, whatever the discipline, you run the risk of being judged by the common man.

And, to be honest, if it were otherwise then everyone outside the profession would have doubts that there wasn't an old boys network at play - how many times does it get bandied about that the FAA is in the pocket of this airline or that manufacturer? How happy would anyone here be if there was an absolute bar to any external oversight to the FAA, either by congress or the judicial branch, on the grounds that "the FAA are the experts"?

(Add in your own favoured or unfavoured aerospace authority to taste)

Ultimately commercial aviation exists as a service to, and by the permission of, the public. We all, eventually, have to answer to them.

[PJ2]

PBL;

Thanks for your considered and thoughtful observations and comments - always read, always appreciated.

Your recognition and discussion of the notion of "discourses" is, I think, very helpful for others in understanding that there is nothing inherently "good" or "necessary" in these (or any other) views, (that safety data is by some special means, "privileged"), but that these views are both argued and implemented within, first, a philosophical, and then a social context.

Indeed, as you state and I agree, the discourses are fundamentally different, (and not only here but in all human exchanges).

A three-thousand-year-old context is more than substantial against aviation's very recent interpretation of disclosure. Since the inception of the "data argument", (based upon technical capability established in the '50's in England), I think the problem of disclosure has always been recognized, (I see Dekker is mentioned - his "Just Culture - Balancing Safety and Acccountability (http://www.ashgate.com/default.aspx?page=637&calcTitle=1&isbn=9780754672678&lang=cy-GB)" is about this very process).

The notion of "the honest mistake" is, within an established legal context, a very strange one indeed - a contradiction even for most people who are outside high-risk organizations.

For others reading this thread, an example of this understanding (of 'the discourse'), could be a comment somebody might write in arguing for the privileging of safety data:

"Do the crime, do the time" (legal discourse), is about as sophisticated as most thinking gets, (safety discourse).

"Unpacking" statements in this manner is good intellectual hygiene, but the effect is a greater understanding of the arguments and a firmer basis upon which the arguments may then be critiqued, (the goal being "progress" - another discourse!).

To continue...

But as we all know too well, the law never precedes or anticipates society and instead both defines through history, and (albeit glacially) reflects societal values. Attitudes and technological developments now occur far faster than such history can accomodate. We may debate whether such a "steady hand" is a benefit or an anachronism - that depends upon the "discourse". Recognizing three thousand years of established practise is, in this context then, descriptive, not prescriptive.

The very recent "safety initiative" of collecting information and then using it as a basis for 'enlightened change' is in response to increased comprehension of the nature of "human factors" and accidents in complex technologies.

The notion of an "organizational error" is very recent, and is contextual, (within the "discourse of safety") would never have occurred to anyone in, say, eleventh century England in which the idea of an individual's personal life and safety had no context and was probably even laughable. The notion, say, of a "mistake within the organization, 'Monarchy' " which caused enormous harm to society, would be entirely foreign and be the subject of great derision within the context of the times, ...but then, we have Magna Carta...a momentous intervention in established (by one man) law of the time.

I'm not placing the present thesis against such historical events, - far from it! This is merely to illustrate the importance of discourse (which is a philosophical, not a political term), and that contexts change and continue to be maleable, most of the time by "a thousand tiny changes", but sometimes by one revolutionary change!

With enhanced comprehension of what makes human beings and their "modern" organizations tick, changes in values which fall within the discourse that informs a liberal society, (the preservation of life and property and the recognition of and therefore the opportunity for, recompense when 'harm' is caused to individuals) will lead lawmakers to "suitable" legal understandings, (in quotes, because the notion of 'suitable' is contextual and the present context is changing).

At the nub, as you say, the issue is almost certainly irresolvable finally, though we muddle through. The "rights" dialogue is currently in fashion. It shows how and why individual rights clash but the entitlement to individual rights, a notion which is supported by a liberal society, is dashed within that same liberal society because they in most cases, rights are mutually exclusive.

To some this review and response to PBL's comments may sound a very long way from the protection of safety information but in my view the thread drawn through these seemingly disparate issues is short and quite straight and do not set aside three thousand years of history but tease out a recognition of inevitable change and posits reasons why.

J.O.;

I suspect that, with any signficant, (read widespread, unfettered) trend towards using safety data for legal processes, a down-tools would not be beyond possibility but a great deal of enlightened ground would have to be dismissed out-of-hand first.

BOAC;

In the Propair case, a Quebec judge has already played a CVR to an open court - it was supposed to have only those directly affected but my understanding of the proceeding from a very good authority who was present, is that the courtroom was filled and the session was not "in camera". Once beyond the flight safety arena and in the legal arena, these things have a life, a pace and an agenda all their own, and that is a large part of the concern.

Again, once that door is open, it is arguably open for both defence and prosecution. It depends upon what society wants but as is keenly understood by those who have been on the receiving end of "justice", and as has been pointed out succinctly by Ex Cargo Clown, these issues are not easily understood by lay people and wrong, (read harmful to individuals), decisions can be made which, more broadly increase, not reduce, risk.

Mad (Flight) Scientist;
Ultimately commercial aviation exists as a service to, and by the permission of, the public. We all, eventually, have to answer to them.You are right, and the industry does this, perhaps with more address than most other professions, but it is the way the response is structured that is being argued. ICAO Annex 13 should provide some comfort for those who may question the robustness and veracity of the investigativeprocess. We might observe that no such formal documentation or requirements exist for any other professions.

PJ2

[Lonewolf_50]

PBL:

I'll take a pass on your suggestion that antiquity ensures validity. (For my money, over reliance on precedent can fall into that trap, and evoke some legitimate criticism of laziness on the part of jurists ... )
It is, however, traditional for at least 1500 years in English law, which relies heavily on precedent. It's hard to beat 1500 years.
Would you say the same about a 1500 year habit of legislating that the earth is flat, or at least 3000 years of the precedent of legal slavery? :confused:

Regarding the actual application of lessons learned, it didn't take 1500 years for the US Navy to figure out (as one of many large organizations in the aviation operations field who learned how this all plays out) that the safety, and thus operatiopnal, benefits of the privilege concept has a beneficial impact on reducing the mishap rate.

For Mad Flight Scientist:
Were air travel as similiar enough in simplicity as surgery, or home construction, I'd consider taking a more favorable look at your point.

If you want to endorse a course of action that will make flying more dangerous, please, continue in your argument.

[PJ2]

Lonewolf_50;

While he may choose to clarify, I took PBLs observations differently - as a description of how things are and the reasons why the views, (which I think we both hold quite strongly) are not uniformly held throughout the legal community and, as made abundantly clear here, not by all passengers or other users of the aviation system.

In short, don't mistake description for advocacy, or agreement with the legal approach, or even an excuse for the way things are.

That said, (and perhaps PBL is saying this - Sid Dekker certainly discusses this), accountability, which usually takes the form of legal process, must be dealt with but within the context of a very long legal history which "demands" recompense.

To me, the inherent mutual exclusion between the legal and safety approaches (discourses) can be separated by requiring independent disclosure proceedings which avoid all reference to or use of specified safety-related flight data and records.

Such an arrangement requires, (and in some enlightened jurisdictions, enjoys) legal protection but that legal protection is being challenged under "the greater good", (which is where my comment comes from regarding, "what is the real criminal act?")

Such an approach is currently a very tall order but as you have said yourself in reference to the US Navy experience and airline safety people know this intuitively, what seemed ridiculous and politically/corporately/economically not doable at one time becomes straightforward and unquesioned at another time. That, for me, is what this thread is all about.

PJ2

[jcjeant]

Hi,

ICAO Annex 13 should provide some comfort for those who may question the robustness and veracity of the investigativeprocess. We might observe that no such formal documentation or requirements exist for any other professions

It is indeed a safety net.
But how far that law is respected and what are the penalties for non compliance ... ?

[stillalbatross]

"We are at take off........"

"Bit thick here, eh Bert"

A big problem is the interpretation of what has been said since it is entirely dependent upon what the person listening to the CVR thinks might have been said.

[Biggles78]

I believe this is NOT a good idea to play the CVR in court. Look what happened to the Dash 8 pilot in New Zealand when the police tried to use the CVR in their case against the Captain. NZ did pass a law to prevent that from happening again.

The ability to improve safety from having a CVR far out weighs the use of it in court cases of any kind.

[PBL]

Lonewolf,

PJ is right that I was not advocating, merely observing.

Indeed, the two examples you describe, personified by Galileo and Wilberforce, show indeed that, as I said, it is hard to beat 1500 years. Neither of them had exactly an easy time of it.

PBL

[DingerX]

--although, of course, scientific opinion has been univocally in favor of the sphericity of the Earth over the last 2500 years; Galileo didn't have the proof he needed for a heliocentric model, and even if he did, the heliocentric model is only a 'less wrong' understanding.

The point of these apparently off-topic clarifications is that 3000 years of history doesn't mean that changes are necessarily in the direction of "improvement"; just that there's 3000 years of procedural dreck to reckon with. Worse, there's no guarantee that the next paradigm shift will be for the better.

So, how to solve the problem? I see two possibilities:

The Nuclear Option

In general, courts routinely disallow disclosure of evidence where the economic, political or human impact is disproportionate to the value of the evidence: if I maintain my car was wrecked due to the faulty construction of the Copenhagen-Malmo bridge, I will have difficulty convincing any court to conduct a tear-down in support of my case.

On the other hand, courts, especially lower courts, are not always likely to understand the intangible damage allowing disclosure of safety data will do to those who seek to collect and to use such information for the purpose of improving safety and saving lives. And they might even overrule legislation designed to keep evidence out of their hands.

So simply mandate that all systems related to the collection of purely safety data be switched off in areas where the courts have determined they may be used as evidence in civil and criminal proceedings. Then the decision to allow such data as evidence will cause damage and loss of life disproportionate to the benefit gained.

The problem is that the nuclear option will almost certainly be exercised.

Not Readable This Station
Encrypt all systems, keep the keys in Sèvres, and do all the safety data collection work from there. If you want to keep something free from state interference (which is what court-ordered disclosure is), there's already a model for that.


Not very enticing alternatives.

[Ex Cargo Clown]

The other issue with disclosure is just where the line is drawn.

If my flight is delayed by two hours and five minutes, may I have access to the CVR if I decide to ask for assistance from the airline, as prescribed under EU Regulation 261/2004 if they decide it was a "safety matter". I'm sure many people would like to know if their flight was delayed due to ATC, Ops etc?

Or maybe I got thrown to the ceiling in some CAT, may I have access, in open court to the CVR to see if it was preventable?

CVR is a tool, one to understand why and how. It shouldn't be used to establish blame.

[jcjeant]

Hi,

CVR is a tool, one to understand why and how. It shouldn't be used to establish blame.

As far as I know .. justice is not only to give a blame to a pilot
In all democratic countries at least the court has worked loading and unloading .. is what determines who is guilty and is not.
A pilot can be exonerated if he does not deserve and therefore the records can be an integral part of his defense.
So it's a double edged sword!

[andrasz]

The above informed debate is very interesting, a happy diversion from the quality of some other threads.

However the course of the discussion is steering away from a fundamental issue, the particular Canadian interpretation of the need to protect CVR contents. Canadian AAIRs do not even contain a transcript of the CVR, just a summary of the CVR evidence directly pertaining to the events. We all know the difference between a full transcript and a summary. Imagine for instance if from the Buffalo CVR transcript only the parts directly related to the control actions that led to the upset were summarised, would we have a good understanding of the accident ? In my view the Canadian practice protects the contents of the CVR beyond what is reasonable, going contrary to the need to reveal the full picture for the learning and benefit of the industry.

[Ex Cargo Clown]

I've just had a look elsewhere about this case, and I'm wondering exactly where the tort has come from, as far as the ATC are concerned.

Surely by definition the Captain is in complete legal charge of the aircraft, why are they attempting to sue the ATC. Seems very odd indeed.

I know there are instance whereby criminal charges have been put upon an ATCer, but civil claims?

[SKS777FLYER]

To be judged by our peers is fair enough, to be judged by those who have absolutely no knowledge of aviation at all? Is that fair?

I thought perhaps, this was devolving into a thread about a hearing conducted of a line pilot by a base chief pilot.:}

Somewhat back on topic.... Sometimes, when accident CVR tapes are reviewed and FDR's decoded it appears that the accident/incident pilot's themselves have limited or no knowledge of aviation at all.

[PBL]

Sometimes, when accident CVR tapes are reviewed and FDR's decoded it appears that the accident/incident pilot's themselves have limited or no knowledge of aviation at all

Everything is possible.

When I read some submissions to TechLog, I find myself wondering if people have any clue about stuff they are writing. And I am well assured that others think the same about me.

That's the point here. Translate: you're trying to fly an airplane with a couple hundred people in back from A to B as best you know how, and some joker is going to play back what you said and decide you are an idiot.

Let me recount a similar experience. I gave evidence before a UK parliamentary committee in 1998 about the development of the UK's new southern ATC center. I was well prepared, gave measured answers, in a room full of interested people, and my appearance was reported on the appropriate page of the Financial Times, along with a rational reconstruction of the arguments I presented.

A short while later, I was given the transcripts to comment. Reading it, I came across to myself like an complete idiot. Whatever, I said it, for better or worse. Gotta say yes, print it. You can read it in the parliamentary transcripts if you like - they are on-line.

What is missing from the judicial process of replaying CVR's is a rational reconstruction of what exactly the crew were saying and meaning (as the Financial Times, and later the New Scientist, gave to my comments). "Rational" in the sense that it makes deliberate sense of what they were communicating and why.

Until some attempt is made to do this, all of it will sound to the untutored ear like - well, like people talking to each other, unaware of the enormity of what is about to unfold. The untutored reaction (on the part of a jury, or panel of judges) to which is: don't you people know how serious this is? To which the tautological answer is: no, we were just doing our usual job according to the usual rules until it went pear-shaped.

Context is decisive. PJ's worries are well-grounded. But judicial proceedings have a right to information. How do we solve this?

PBL

[mary meagher]

It is my impression that CVR transcripts are fairly routinely available in the US - is that the case? As opposed to the live recordings, which should be withheld in all decency.

In PJ2's initial report of this dispute, the Ontario Court of Appeal has supported the request by Canada's board of ATC, "NAV Canada" to disclose the contents of the CVR to clarify events, as Air France apparently is seeking to place some blame on ATC for the over-run of the Airbus in a thunderstorm. So CVR transcripts are not routinely available in Canada, then?

Having read the report, the propensity of pilots to persist in an approach when it would be prudent to go around does seem to call for a different emphasis in company policies. European operators are unfamiliar with the dreadful power of a North American thunderstorm. The pilots of the Air France Airbus did their best with limited weather information; the ATC did its best with half their wind recording instruments zapped by the storm.

Holes in cheese lined up big time. Thanks to good work by the cabin crew, all aboard survived, despite at least half insisting on taking hand baggage down the slides!

A number of good recommendations were made in the very comprehensive report. I wonder how many company policies now promote the prudent go around? how many airfields have built an over-run area that can safely slow down and stop the imprudent? surely computers can keep the pilots informed of the required distance for a safe arrival on any runway, contaminated or not?

[jcjeant]

Hi,

To be judged by our peers is fair enough, to be judged by those who have absolutely no knowledge of aviation at all? Is that fair?

If we apply your principle of justice (just be judged by his peers) they can now close all the courts of justice
It is noteworthy that the court of justice (or judges) rely on experts in the field of cases tried.
There is no argument for a pilot or other professional should only be judged by his peers.

[lomapaseo]

If we apply your principle of justice (just be judged by his peers) they can now close all the courts of justice
It is noteworthy that the court of justice (or judges) rely on experts in the field of cases tried.
There is no argument for a pilot or other professional should only be judged by his peers.

I was of the mind (I can be changed) that the judgement of John Q public type peers was towards the validity of the arguments presented by experts in the field. That said I didn't think that the average Joe would make judgements based solely by what they heard but more so on what the experts suggested what it could mean.

[Mad (Flt) Scientist]

From people I know who have served on juries (I confess I never have, and having heard from some I consider myself fortunate) I think that Joe Q Public takes his duties as a juror rather seriously.

Its the job of the judge to direct and assist the jury with regard toi how evidence is considered, and the jobs of both sets of lawyers to present appropriate experts.

[Ex Cargo Clown]

I think (and this is off the top of my head) that there was a fraud case about Guinness which took a long time to resolve. The jury were dismissed because they didn't have the ability to judge the case on it's technical merits, as it involved very tricky accounting.

I may well be wrong, I'd welcome some other legal experts to clarify this.

[fdr]

PBL, PJ2, enjoyed the discussion.

Reality remains that where evidence exists that is not subject to privilege, then it is fair game in discovery. The NZL Dash-8 accident use of the CVR by the police was justified on this basis, and later the law amended to limit the problem.

Since mandating of CVR's in air transportation in 1965, it is notable that almost all, if not all other close coupled professions do not use operational recording systems, yet the fatalities in say, the medical profession, is orders of magnitude greater than the losses in aviation, in fact, the losses in the USA annually exceed by orders of magnitude the total losses in global jet transportation. From negligence, or other causation excluding natural cause.

One can imagine the reticence of any O.R. staff to the implementation of any recording system in the "interests of safety" that are subsequently available for the purpose of litigation.

Aviation losses are newsworthy. Aviation is high profile. Aviation is also historically proactive in the field of safety, yet the society that benefits from this openness, wants to additionally be able to use the same information for determination of liability; have your cake and eat it too...

As PBL notes, the solution is not clear in the question of access to the information. As is also noted variously, the interpretation of an audio tape by a jury or by the opposing counsels in the adversarial arena of a civil case is hardly optimal, or even likely to be valid or fair to any parties. Further, even competent analysts of CVR and spectra often have difficulty determining a particular meaning or event from the data, a case that becomes more difficult where the question of liability intrudes. Observer bias...

In this particular instance, it is unusual that the plaintiff is the one with the data, and the party requesting the access is the defendant, particularly in light of the known facts of the flight. While there are issues related to RESA and WADD etc that may be of interest to systemic risk reduction, it pales in comparison to the reported operation.

Aviations safety programs will survive this issue, and crews will be put at higher levels of personal liability than previously accepted in the interest of safety. Pilots will continue to fly and grumble about the inequity of the issue, and at the same time their professional standing will continue to be eroded beyond where it has decayed to, to date, that of a burger flipper. The public will continue to be complicit in this erosion, by demanding cheaper commodities in air travel, while being surprised when they get dead as a consequence. At least if the professional erosion continues long enough the health of the pilots will improve, the Colgan pilots won't be able to afford french fries, and the Russians won't be able to buy Vodka!

Arbitrage of safety doesn't work. :(

L.B. Pearson has some issues, but it just one of a long line of airports where safety is hardly the major driver. Perhaps we will have some indication of a serious interest in safety by the public when noise abatement stops having a greater operational priority than operational safety of flight which results in reduced safety margins and qualitative risk management decisions by crews on issues of quantitative outcomes.

cheers

FDR

[Shell Management]

I think the NTSB are on the right lines when they encouraged the use of routine CVR replays by airlines for sterile cockpit complaince monitoring after the Q400 accident in NY state. Its only the industry's militant union tradition and the lax appoach to safety improvement by airline management that is blocking this important risk reducing advance.

[lomapaseo]

I think the NTSB are on the right lines when they encouraged the use of routine CVR replays by airlines for sterile cockpit complaince monitoring after the Q400 accident in NY state. Its only the industry's militant union tradition and the lax appoach to safety improvement by airline management that is blocking this important risk reducing advance.


I don't agree with most of this.

Compliance monitoring implies publicity of private conversations for the purpose of punishement and/or warnings.

Seeing as how multiple trained professionals are having a conversation they are best to sense the interruption in duties at the time and suggest to themselves to mind the store. This timeliness of identification and correction is far preferred versus after the fact revelation.

Out of the cockpit it is well and fine to reinforce the importance in routine training.

And just because not everybody agrees with your wishes does not imply a lax approach to safety

[Shell Management]

Below FL100 there should be no private conversations!

Routine CVR Monitoring (CVRM) is just a natural extension to both LOSA and Flight Data Monitoring and a natural form of FOQA, no different than having a trusted observer on the flight deck.

Any non-compliance should be dealt with in a just and accountable way.

Why would anyone want to be in the postion of flying with a rogue pilot?

[The Ancient Geek]

Below FL100 there should be no private conversations!



Sounds a bit tough for the Twotter drivers. :ugh:

[clunckdriver]

Geek, most Twotter Drivers are pretty much deaf after 5,000 hours anyway, so it wont make much difference!

[The Ancient Geek]

Geek, most Twotter Drivers are pretty much deaf after 5,000 hours anyway, so it wont make much difference!


WHAT WAS THAT YOU SAID ?

[Shell Management]

Very good!:D

[fdr]

R.O.F.L.! :D

The NTSB is one institution which knows full well what the overhead of conducting such a program would be; they get swamped with 2 guys having to look at one CVR in detail for a period of 16.5 seconds. That analysis takes weeks to months to complete, for one case. A mid size airline is operating say 100 AC, conducting 3 4 sectors a day.... so, not too sure how that would look to the creditors, investors etc when they find the airline has more CVR analysts than customers.

A brief perusal of a CVR is nearly meaningless. Without contextual understanding any crew can appear distracted, preoccupied, or nearly incoherent. Tape yourself for 30 minutes conducting a menial task and then get someone to work out if you complied with your expected protocols. Even video is limiting. Recall how much of communication is non verbal, even in the flight deck environment, and pointed away from the video camera... remember your last videotaped LOFT exercise? The two clowns with cotton wool in their mouths? Half competed statements etc? (from being a clown (clownee?) and watching clowns... :) (clowner?) ).

Data capture is easy, but meaningful information retrieval from behavioral observations by means of textural utterances takes skills that most flight operations and few safety departments have. For years, NTSB had 2 guys, for CVR... M. Cash and co. NSA's task is simplified by using key words to identify communication of interest, which is not a method that would work in the flight deck, we know what words are likely to be used, what is unknown is the level of understanding and compliance that occurs at the individual or group level. At present, this becomes obvious when the crew report a self identified error (in an ideal world - parallel universe...) or when the slip between the operation and the procedure becomes evident as an incident or accident, ie an exception occurs.

Look forward to some system other than management by exception, but won't be holding my breath for that. On the off chance it does occur in the foreseeable future, will be surprised if it adds meaningful understanding to the existing knowledge base of human frailties and operational error. Hope it does...

PS; a fair data recovery rate in FOQA is 80%, and not too many departments achieve much higher than that level, due to the problems of sensors, data capture, recording, transport (and mishandling :|). CVR data integrity is even more fragile IMHO, due to environmental issues.

PPS; regular CVR screening will sort out in short order how many flight operations departments have a pathological punitive culture.


FDR

[Shell Management]

There are many ways to do this practically (if you have the will and the right culture):

Random sampling - they key word is random, the very fact that a flight might be sampled will drive the right behaviour on everey flight

Also only sample when a sterile cockpit is manadated or when FOQA highlights exceedances.

Use speech recognition technology to filter in the same way that FOQA data is filtered before an analyst examines the data.

Luddite excuses are not acceptable from anyone committed to air safety.

[J.O.]

Calling someone a luddite for expressing legitimate concerns is unlikely to sway much opinion on this forum. Try lightening up a bit.

Random sampling - they key word is random, the very fact that a flight might be sampled will drive the right behaviour on everey flight.

That's like saying that FOQA programs will stop pilots from making operational errors. Pilots soon forget that they're being watched and human nature has a habit of taking over.

[tailstrikecharles]

many, many cases where cops are busted, recorded by their own car cameras.
It is nonsensical to imagine another layer of technology, thrown own like another band aid can solve anything

[Shell Management]

Luddites want to dismiss the benefits of technology through fear or ignorance.

The more you monitor the more that risk is reduced.

Non compliance is different from errors. Errors are not a choice, non-compliance is a choice, a non-professional one. The NTSB have certainly realised that they are often investigating accidents where pilots (or controllers) have been blatantly unprofessional (eg Colgan, Hudson collision, teh A320 overfly, the CRJ wrong runway take off etc etc) and that those people wre probablu habitually un-professional but assumed that their slackness was OK because they had never had an accident.

Major Tony Kern, USAF Ret., was a U.S. Air Force pilot with operational experience in the Rockwell B-1B supersonic bomber, Boeing KC-135 Tanker, and the Slingsby T-3 Firefly. During his 15-year Air Force career, he served in various operational and training capacities including the Chief of Cockpit Resource Management (CRM) Plans and Programs at the USAF Air Education and Training Command (AETC). He wrote a case study of the B-52 crash titled "Darker Shades of Blue". It is an intriguing, in depth report of failed leadership and cultural issues that directly contibuted to the incident. It's the story of a "hot dog" pilot and how he lived outside the regs.

http://mysite.verizon.net/res7zx3v/sitebui...darker_blue.doc

That is an accident that would have been prevented by CVRM.

[johns7022]

FO: 'Uh Capt, I think we are below the Glideslipe and inside the outter marker, and the airport is behind us'

Capt: 'Shut up and do what your told'

- Crash -

[Shell Management]

Some pilots want the gold braid, pay and status but don't want to be accountable for their performance.

[PJ2]

J.O.
Pilots soon forget that they're being watched and human nature has a habit of taking over.
Yes you are quite right; - its a human factors issue, and monitoring recidivism is one aspect of an active FOQA Program. It works well when all the information is provided to the pilots, de-identified of course.

Another aspect of an enlightened program is managing those extremely rare circumstances in which a non-standard event appears to be intentional. This is recognized, twice in fact, in the FAA's SAFO's, which caution those running FOQA Programs to carefully examine all flight data from non-revenue flights, (SAFO 08024 (http://www.faa.gov/other_visit/aviation_industry/airline_operators/airline_safety/safo/all_safos/media/2008/SAFO08024.pdf)). The process, including the crew contact, works.

PJ2

[Shell Management]

Certainly the number of NTSB/AAIB/ATSB reports that highlight that pilots are not reporting significant safety issues is growing (though many turn a blind ear to that ringing alarm bell).

On cockpit non compliances - from the NTSB:


Both pilots of Flight 3407 engaged in non-pertinent conversation during the flight, and neither pilot addressed the other pilot’s deviation from sterile cockpit procedures. Their ease in engaging in non-pertinent conversation suggested that the practice is not unusual among company pilots during critical phases of flight.

The sterile cockpit rule (14 CFR 121.542) is intended to ensure that a pilot’s attention is directed to operational concerns during critical phases of flight rather than nonessential activities or conversation. In 2006, the NTSB recommended that the FAA direct POIs of all Part 121 and 135 operators to reemphasize the importance of strict compliance with the sterile cockpit rule (A-06-7). In response to this recommendation, the FAA issued SAFO 06004 on April 28, 2006, to emphasize the importance of sterile cockpit discipline. Four months after the SAFO was issued, the crew of Comair Flight 5191 attempted to take off on the wrong runway in Lexington, Kentucky. There were 49 fatalities in that accident, and the NTSB determined that the crew missed important cues during their taxi because they were engaged in non-essential conversation. Since the SAFO was issued, the NTSB has continued to investigate other accidents where the sterile cockpit rule was violated.

Even though the responsibility for sterile cockpit adherence is ultimately a matter of a pilot’s own professional integrity, pilots work within the context of professionalism created through the mutual efforts of the FAA, operators, and pilot groups. The continuing number of accidents involving a breakdown in sterile cockpit discipline warrants innovative action by the FAA and the aviation industry to promptly address this issue.

CVRM is one such innovative action that can be incorporated within an airline SMS (if and when airlines start to get their act together on SMS).

It is rteally time that someone had tehe courage to trial CVRM.

More from Tony Kern on why complaceny in the airline industry kills
http://www.ntsb.gov/events/symp-professionalism-aviation/Kern-NTSB-Professionalism-Forum.pdf

[Cosmo]

Regarding the Q400 accident, weren’t they discussing icing whilst in icing conditions? I’ve not understood how the sterile concept was breached in that particular case. Discussing about icing seems rather relevant when in icing conditions.

If you’re advocating that sterile cockpit should mean only expressing SOP related items you’ve never sat on the flight deck. Communication of operational related items can be very subtle and sometimes roundabout. Equally, listening to a CVR tape or reading a transcript doesn’t tell you what the speaker is looking at. I was taught from day one to talk to the instrument panel.

Reading the CVR transcript of the Q400 accident my first thoughts were that the FO was relaying to the Captain that she was inexperienced regarding icing conditions. That seems a relevant point to communicate. I also feel that they reacted to the situation thinking it was the stabilizer that was stalling.

[Shell Management]

Icing was not a factor in the accident but chatting about it was.

NTSB scrutinizes pilots in Colgan Q400 crash probe: AINonline (http://www.ainonline.com/news/single-news-page/article/ntsb-scrutinizes-pilots-in-colgan-q400-crash-probe-20875/)


NTSB hearing officer Lorenda Ward reported that the crew engaged in non-essential conversation while flying below 10,000 feet in violation of FAA rules, including, for example, a three-minute discussion on the first officer’s experience in icing conditions and training. “This conversation occurred just a few minutes before the stick shaker activated and while the crew was executing the approach checklist,” said Ward.

Although the pilots reported ice accretion on the airplane’s windshield and wings, airplane performance modeling and simulation conducted by the NTSB show that icing had “minimal effect” on the stall speed of the airplane. Information from the airplane’s FDR indicates that the stick shaker activated at 130 knots, a speed consistent with an engaged de-icing system. FDR data further indicates that when the stick shaker activated, the control column experienced a 25-pound pull force, followed by an up elevator deflection and an increase in pitch, angle of attack and g forces.

During the flight’s climb to 16,000 feet, the crew activated the de-icing systems and left them on throughout the flight. About 40 minutes into the flight, the crew began their descent and at 10:10 p.m. they discussed the build-up of ice on the windshield. At 10:12, the flight received clearance to descend to 2,300 feet and reached that altitude at 10:14. At 10:16 the crew lowered the landing gear, and about 20 seconds later the first officer moved the flaps from 5 to 10 degrees. The stick shaker activated and the autopilot disengaged shortly thereafter. The crew added power to about 75-percent torque and the control column moved aft. That accompanied a pitch-up motion, a left roll, followed by a right roll, during which time the stick pusher activated and the flaps retracted. The airspeed then decreased and after further pitch and roll excursions the airplane pitched down and entered a steep descent from which it did not recover.

[squib66]

PJ2 everyone exposed to the Shell management approach will know that this is exactly how the operate - except they will also take credit for the hard work of others after the event. Believe it or not this character, SM, is actually far more polite than some of the Shelldroids focused on their fat bonus payments and prepared to steamroller things through to get them!

[PJ2]

squibb66;

For the moment I'm suspending judgement in favour of curiosity.

While it doesn't form a pattern or even provide an example of clear exception, I've worked with Shell Oil flight safety people in safety audits. The experience was a good one, they knew what they were doing and their comments were appropriate and helpful. They focussed on the issues and had the professional integrity to stick to the business at hand.

They would never have thought of employing the term "luddites" when referring to colleagues' input, or characterize flight crews as "being in the business for the gold braid". Perhaps being far from headquarters is a benefit...

That said, I thought the offer of opening the discussion might get it off top-dead-center. We'll see.

PJ2

[squib66]

Now this is becoming a touch surreal.

They focussed on the issues and had the professional integrity to stick to the business at hand.

There is no need to be sarcastic but on the off chance you are actually serious, as you mention Shell Oil means you are talking about the US operation, where excessive self-righteousness is actually very well known.

I've never heard of anyone at Shell calling themselves a flight safety person as they are 'advisors' (in the same way that 'nice' Alistair Campbell was Tony Blair's commiunication advisor).

I have heard a Shell Advisor rant about the FSO of one major operator but that is another story.

[PJ2]

squib66, check your PMs.

PJ2

[Patty747400]

Ex Cargo Clown wrote:

"I've just had a look elsewhere about this case, and I'm wondering exactly where the tort has come from, as far as the ATC are concerned.

Surely by definition the Captain is in complete legal charge of the aircraft, why are they attempting to sue the ATC. Seems very odd indeed.

I know there are instance whereby criminal charges have been put upon an ATCer, but civil claims?"

I wonder too? A crew fail to do a proper landing and then fail to do a Go-Around. And they sue ATC?

[fdr]

Shell shock: Whatever is being smoked there in Amsterdam, don't take it to Singapore...

I am trying to envisage what the algorithm for screening would look like that would not result in massive manual intervention in the data reduction. Even on completion of that task, assuming we are talking about RPT carriers where the bulk of public risk exists... regional ops, where the largest number of movements exist... etc.

If the intent is just to invade the cockpit and have a pretense of management involvement (interference) in the day to day operation, I think it would be seen as such. Yes, non adherence of sterile cockpit is on occasion coincident with an event, but it is not often the cause of the event directly, merely (arguably..) a symptom of cockpit discipline at the relevant time. There are other simpler methods of identifying operational discipline, that exist and do work already. FOQA. etc.

Frankly, I would think there as much to be gained by placing a CVR in the office of the Accountable Manager and Co, (accountant, safety manager, training manager, scheduler, dispatcher, airport manager, etc) those people who make decisions that affect the balance of commercial imperatives v safety standards, which as often as not results in the crew being placed in invidious circumstances, and making operational compromises which they are then responsible for, all for the grand renumeration of, what, minimum wage for Colgan? F/O's on welfare? Heck, I would be happy if those people had initial and recurrent training on the impact of their actions on operational and public risk.

Now, Shell game, in your case, feel free to pull the CVR for your fleet and charter ops. Should keep you amused for hours. Certainly will endear you to the crews that you show so little faith in.

Safety Cases? worked for the oil & gas programs.... Piper Alpha, Exxon Valdez,Amoco Cadiz, Torrey Canyon, Ixtoc I, lexander L. Kielland, Seacrest, Ocean Ranger... Texas City, Alon USA etc... your (Shell Manglement's) industry is a high risk industry, but as often as not the errors are systemic, with the poor sod on the firing (literally) line being merely the last point of failure, and often as not, the first to die. To that extent there is a commonality to aviation's inherent risk.

At some point management needs to get their foot off the throat of the people they have placed in untenable positions, and look closely in the mirror, and honestly review their culpability in outcomes. Recently, the ambivalent attitude of the oil industry to safety was evident to the public, with the CEO of a major taking time off to go sailing in the midst of a record setting environmental disaster, the result of the corporations desires for returns to investors, and bonuses to bosses... Tape your own offices, and let the professional aircrew got on with their duties. IMHO.



The people who are regarded as moral luminaries are those who forego ordinary pleasures themselves and find compensation in interfering with the pleasures of others. Bertrand Russell (1872-1970)

[Shell Management]

PJ2 - I've already highlighted some steps to achieve CVRM in practice.

Remember too that voice analysis software is routinely used for security purposes and the steadily expanding speed of computers also help. If you work in a Shell refinery communications is recorded and available for training and quality purposes using technology used in call centres. Aviation is not that special.

Courage is needed to overcome the resistance to change that is holding back an advance in safety that certainly concerns the NTSB.

[PJ2]

Federal Judge Rules Flight 3407 CVR Can Be Used As Evidence (http://www.pprune.org/www.ca2.uscourts.gov)

Sorry, the above link provided to the ruling leads to the Second Circuit Court of Appeals but not to the actual ruling. The site is very confusing to search for the uninitiated, and there is no Docket number provided in the story. However, the story has made the usual media outlets.



Federal Judge Rules Flight 3407 CVR Can Be Used As Evidence

Judge Said Written Transcript Does Not Accurately Reflect Actual Conditions

In a decision that could have far-reaching implications for aviation, a federal judge has ruled that the actual recording from the cockpit voice recorder (CVR) made when Continental Connection Flight 3407 went down can be introduced as evidence in the wrongful death suits filed in connection with the accident.

A transcript of the CVR recording was released last year, but judge William M Skretny said the written transcript was not complete and contains inaccuracies. The Buffalo News reports that Skretny listened to the recordings in private before making his ruling.

"Production of the recording [as evidence] is necessary because the written transcript does not and cannot reflect tone of voice, pitch, volume or inflection, nor does it necessarily accurately reflect ambient and other noises pertinent to the aircraft's operation," Skretny wrote in his opinion. "The Second Circuit [Appeals] Court has recognized the evidentiary importance of the audio recording from a cockpit voice recorder, which is often the only piece of neutral evidence in an air crash case," the ruling continued.

Attorneys for the families of some of those fatally injured in the accident said that the written transcript does not convey the "pre-impact terror" aboard the aircraft.

39 lawsuits have been filed in connection with the accident. The paper reports that five have been settled out of court.

Aero-News Analysis: There are few in aviation that will argue with the opinion that this sets an overtly dangerous precedent. Pilots have fought the disclosure of such recordings for years by virtue of the fact that the real factual evidence is contained in the transcripts that ARE released and that the actual recordings will do nothing but harm those involved (emotionally) and enrich grand-standing attorneys. This decision needs to be fought at all costs... as the release of this information has no evidentiary value whatsoever... and is nothing but a ghoulish attempt to profit off tragedy.

-- Jim Campbell, ANN Editor-In-Chief

[Shell Management]

Even when a CVR is used in a court case it should be obvious that the families would not be suing the pilots or their estates but would go after the corporations involved because they have the deepest pockets and are more likely to settle out of court when they fail the red face test.

As the judge explains:


"Production of the recording [as discovery material] is necessary because the written transcript does not and cannot reflect tone of voice, pitch, volume or inflection, nor does it necessarily accurately reflect ambient and other noises pertinent to the aircraft's operation,"*


Obviously the unions have to object as pilots collectively can't command a 'Right Stuff' wage at a premium to bus drivers if individual pilots are shown to underperform dramatically with mass fatalities.


Officials of the National Transportation Safety Board have said the transcript shows that the two pilots violated flight safety regulations by engaging in extraneous conversations.

The transcript contains 26 notations indicating the "sound of laughter" by one or both of the pilots, according to court papers.*



CVRM is a real opprtunity to raise standards and reduce non-compliances as pilots would be more focused and attentive to the rules if they knew that their CVR tape may be reviewed at random, its just like random drug and alcohol screeing.

* see here:
Attorneys will hear Flight 3407 cockpit tape - Courts - The Buffalo News (http://www.buffalonews.com/city/police-courts/courts/article225465.ece)

[PJ2]

SM;
Obviously the unions have to object as pilots collectively can't command a 'Right Stuff' wage at a premium to bus drivers if individual pilots are shown to underperform dramatically with mass fatalities.
I don't know what you do, but if you believe what you said, you have no comprehension whatsoever of flight safety work and even less of industrial issues and dealing with flight crews. You have no idea what you're talking about in terms of envisioning, designing and implementing anything to do with "CVRM".

PJ2

[Shell Management]

High pay should not be confused with flight safety.

Also if ALPA claim low pay was a factor in this accident (as it probably was for fatigue reasons) then they have to accept that their infatuation with seniority lists and major carriers is not helping the vulnerable younger pilots in the commuter industry. The US unions management of change has failed to cope with the change in the airline industry since 1979.

Wages are not a factor in the value of CVRM so please do knock safety initiatives for irrelavent reasons.

CVRM, coupled with a Safety Management System, would be an excellent way to counter some of the pressures seen in the Colgan accident and this CNN report:
Secrets pilots won't tell you - CNN.com (http://edition.cnn.com/2010/TRAVEL/10/21/pilot.secrets/index.html?hpt=T2)
That is because the airline management could not claim they didn't know what was really going on or hide under the facarde that they have never had an accident.

This thread gives another justification for CVRM http://www.pprune.org/rumours-news/431335-turkish-airlines-jets-collusion-avoided-100-meters.html

[Nigd3]

I simply do not see how the aviation industry can afford to implement CVRM.

The logistics of being able to capture these "rogue" pilots using analysis of the last two hours of any given flight would require massess of data being processed. Then, as someone has rightly pointed out, the correct contextual meaning of even small samples of voice data could take weeks to determine by well trained specialists. Even then the result can be disputed.

With pilots coming from all over the world, you had also better make sure that the speciallists are multi lingual for the occasions that they break the sterile cockpit in their (non English) mother tongue.

[Shell Management]

Firstly there is no such thing as a private conversation when sterile cockpit rules apply. Compliance monitoring during safety critical tasks should be universal. Look what can be done in engineering to prevent maintenance error: http://www.raes-hfg.com/reports/08dec00-BusinessCase/comp-mon.ppt or capture terrible medical errors via video: BBC News - Tetraplegic man's life support 'turned off by mistake' (http://www.bbc.co.uk/news/uk-england-wiltshire-11595485)

I propose sampling, so perhaps one in 50 flights so that reduces the data to review but the nature of radom sampling means that the unprofessional behaviour NTSB have identified will be reduced as well as some pilots being identified for counceling.

I also propose analysing only those portions of a flight on a CVR recording where sterile cockpit rules apply. In other words a relatively small amount of data but at the most critical time.

Look at Google Earth & Steetmap. 10 years ago we would never have imagined we would have access to so much data.

Some responders may opine negatively here but the airline industry must strive to improve. Per Ardua ad Astra!

[J.O.]

Random sampling will be no better at improving safety than the police who post radar traps once every 6 months on a given stretch of road. The other 363 days a year, people will break the speed limit in that area with impunity. Want to stop it, put up a speed camera that gets everyone. Same would apply to analysis of CVRs, but as has been already pointed out correctly, to do so would be prohibitively complex and expensive with virtually no provable benefit to be had. Unlike flight data, it requires human interpretation, and not just some of the time, but all of the time. Ask a CVR team from your favourite accident investigation authority how long it takes to perform analysis of just one accident CVR, and they already have some idea of what it is they are looking for.

The other thing about random sampling is that while you may only look at a portion of your data, you're responsible for 100% of it. While you're not likely to ever get to 100% of your data, even if you wanted to, it's going to look very bad if one of the ones you "missed" in your 1 in 50 program ends up being later shown to have been a precursor to something serious.

If cockpit discipline is a serious issue for the industry, there are much better ways to assure compliance through reinforcement in training and checking; with frequent published reminders; and by having professionals "self checking" each other. The way forward is to build a culture of compliance, not by using a stick and a carrot.

[mary meagher]

Aircrew must be able to report without fear or favour anything at all that may in the future prevent an accident. The Air India thread provides insight into a culture that seems to actively discourage this.

What we don't need are lawyers using CVRs to shock juries into lucrative verdicts. That was NEVER the objective.

[Shell Management]

J.O. what you suggest has been shown by NTSB to be failing - hence the need new techniques to be justly used

Mary - the best way to stop lawyers getting the tapes is not to crash PERIOD. Truth should be an absolute and any expectation that the airline industry can hide data is childish wishfullfilling fantasy.

[TomBola]

SM

...what you suggest has been shown by NTSB to be failing - hence the need new techniques to be justly used


Provide facts and figures. Whan has Smell ever had a just culture :confused:

Smell Accountability Rating (http://shellnews.net/week39/shellnewsaccountabilityrating27september2005.htm)

[Shell Management]

Of course your link is to one of those crackpot eco group propaganda sites. Though one that clearly hasn't bothered with any muck-racking for 5 years.

Shell have been leaders in the application of just culture for years and is well known for funding much of the prior groundbreaking theory at universities in the UK & Netherlands. Shell has made much of this freely available to the world: Hearts and Minds - Home (http://www.eimicrosites.org/heartsandminds/)

TB. via PMs has also reminded me that CVR's of course already would be used as evidence in court in the event of suspected suicides such as Silkair, Egyptair or attempted suicides by crew. A rare, but sadly not unheard of event.

[mary meagher]

Shell Management, is that really your title? Are you responsible for the entire company, and that is why it is used as your alias? I don't somehow think that the Shell Company would appreciate your insinuation that the airline industry is attempting to hide data. Truth, actually is far from being an absolute - think of Rashamon -

Air accident investigators do their careful and NON JUDGEMENTAL analysis of accidents using every bit of evidence, at least in the UK, I suspect the same is true of the US and Canada. The point of the analysis thus arrived at is to prevent another accident. Not to apportion blame. The motive of the lawyer is rather different.

[jungle drums]

Shell Management, your own outfit is not quite the stellar example of corporate operations;

Dutch based, Bermudan registered airplanes, FAA Licenced pilots in the middle of EASA operations.

And your credibility as a manager suffers severely when you display pig ignorance and a big chip on both shoulders with your quotes about pilots: "right stuff", "big pay", "gold braid".

Your company board, employees and guests are all in the hands of your company pilots - often times unsupported throughout the world, Africa, Eastern Europe, or even just in the challenging winter approaches into London City.

Any company needs people with these attributes - not for the day to day mundane, but to stand up and say "I am up for it" when the tough challenges appear.

The flightdeck atmosphere should be professional but relaxed, not uptight and frightened. Recruiting correctly, paying fairly, leading properly and setting the example will get your results. Not fear and intimidation, back room cowardice, after the event grand standing.

Please enlighten us - how much has Shell's corporate outfit benefitted from FOQA and CVR monitoring. How is the morale and trust amongst your team?

Shell operated into and out of London City for many years incident free before the introduction of FOQA. What caused the Falcon heavy landing there shortly after its introduction?

You quote a recent London City clearance readback error by a foreign language crew as a justification for CVR monitoring. Their incorrect readback was not corrected by ATC.

And you jumped on the Buffalo crash as reasons for CVR monitoring - these young inexperienced pilots were placed in this scenario by bad management - two inexperienced pilots, rubbish wages and poor training. These kids were commuting, sleeping in terminals, and somehow the young captains training had conditioned him to pull against the stickshaker.

Shell Management needs to learn that complexity does not make things safe - simplicity does.

Shell Management is apparently not an experienced aviator, nor leader of people.

And "Here Here" to FDR's response to you. Much more eloquent than mine.

[Huck]

High pay should not be confused with flight safety.


Just keep on telling yourself that. The free market doesn't apply to flying skills....

[Just a Grunt]

First, a confession: I am a lawyer.

I'd like to attempt to contribute in a balanced way to the discussion, particularly given the hysterical tenor of a few of the responses. BTW, I regularly record conferences with my clients. In certain circumstances (such as a complaint against me) I would be compelled to disclose them to my regulator. I have had to give evidence on more than one occasion about discussions that I have had with a client.

Here's a view of the issue (and a discussion of the history of the debate) from an Australian & NZ legal perspective:

David Boughen Memorial Address Aviation Law Association of Australia and New Zealand Conference (http://archive.sclqld.org.au/judgepub/dj181099.htm)

Pursuant to the Australian legislation, the data recorders are not admissible in any criminal proceedings against flight crew, and only in civil proceedings if the public interest in disclosure outweighs that in favour of protecting the privacy of the crew and facilitating proper investigation.

In NZ, recorded data is not admissible against a pilot it any proceedings. Before ordering disclosure in a civil case against an airline, only where very large sums are sought by way of damages and even then, a court considering the issue must determine that "the interests of justice in the disclosure of the record outweigh the adverse domestic and international impact the disclosure may have on the investigation to which the record relates or any future investigation into an accident or incident."

Significantly, Chief Justice de Jersey speaks of our "parliaments taking an approach protective of flight crews, but recognizing the social utility of facilitating civil claims."

The point I make is that not all lawyers (and probably very few) would agree with the proposition that broad issues of safety and privacy should be simply trampled on in pursuit of damages claims.

As for closed courts, it has long been the principle that justice must be done and seen to be done in the crucible of the public view. Decisions (especially controversial ones) that are made in secret - or on the basis of secret evidence - are likely to be viewed with suspicion and cynicism.

My $0.02. Pls give me a sec to put my nomex robes on before commencing the flaming.

[PJ2]

Just a Grunt;

No need for the nomex.

First, thank you for returning to the original topic at hand. I was actually aware of Australia's enlightened laws on the matter of protecting flight data from use in criminal court but had forgotten. Thanks for the reminder.

In re, "Significantly, Chief Justice de Jersey speaks of our "parliaments taking an approach protective of flight crews, but recognizing the social utility of facilitating civil claims." ",

Frankly, I think that's all that reasonable argument from the flight crews' side of matters could expect. It has been pointed out (PBL) that the legal history of "recompense", (I know I am not using the correct term here, but I'm a pilot, not a lawyer) is a very long one and that one cannot just toss out such history in order to privilege a recent process - not, at least, without signficant social benefit.

So, hastily added however is the acknowledgement that "accidents" and "human factors" are far more deeply comprehended today than such factors were fifty years ago. We also now know that the intelligent use of collected data has a strongly preventative effect when provided to the appropriate groups.

Changing SOPs, addressing ATC procedures, examining aircraft behaviours, and collating data which may exhibit behavioural patterns not seen in cockpit crews before, (the automation question may be a case in point), all point to the such appropriate use of flight data.

Yet there is a strong societal sense that, at some point, there must be an accounting. I think most flight safety people would agree. As PBL has offered, perhaps the two worlds are irreconcilable, and perhaps that is so, perhaps not. I know PBL has considered the notion of civil proceedings as well, as one way to retain the integrity of seemingly-opposed processes.

The issue is, primarily, using such data/information in criminal court as a blame-mechanism. The issue is not necessarily the total prevention of discovery as may occur in civil proceedings.

By bringing these two court cases into discussion with those in aviation and specifically the safety professions, and of those professionals in other fields, (legal, engineering, human factors), it is to this point (of possible ways forward) that I had hoped this thread would have arrived, though much earlier.

I hope others, from the aviation community and from the legal profession might pick up on these thoughts to see where this might go.

PJ2

[PBL]

Now, that's a pretty interesting comment from Just a Grunt.

In France, any lawyerly communications with clients or engaged experts outside of the courtroom are strictly privileged, as far as I know. This extends to documents.

In England, client-lawyer or lawyer-expert discussions, indeed communications of any sort, are privileged, but I believe there are circumstances in which some sorts of communications must be revealed; I don't know what they are.

In the US, any sort of written communication between lawyers and experts may be subject to disclosure, as I understand it.

It makes for interesting times when one works international proceedings, because nobody quite knows what's what where!

It will be obvious that I don't share the trite, disparaging attitude towards the legal profession which others have expressed here. I have a lawyer to thank for being able to see my son regularly for much of the last twelve years (although she hasn't succeeded too well in the last two and a half). I have a lawyer to thank for a larger inheritance; she put my father's house up for auction and a couple of neighbors got competitive over it. I shall have lawyers (clients) to thank for our company airplane; it cruises at a blinding 0.128 M at FL30 and will be overtaken by a Renault Clio on the Autobahn but, hey, it's up there and not down here, and it goes over the water to the island and it'll let the two others learn how to fly. I have a lawyer to thank (as well as a bank) for arranging for me to buy my house, and the same lawyer to thank for arranging to sell half of it (it's a double). I have a lawyer to thank for helping me through recovery proceedings against business people who caused me somewhat expensive problems (all three finally went to court).

None of them have any technical gumption (even those that do pretend they don't, right, FL?) which does make things a bit hard when talking about airplanes, but, if I have to explain something three times, I just count the euros dropping into the piggy bank as I do so :) Wait, isn't that what they say about me, too?......

PBL

[Just a Grunt]

Lawyer-client communications are privileged. But if, for example, a client makes a complaint about how you handled their case, they are usually said to have impliedly or expressly waived privilege, and the communications may be revealed to, for example, an appellate court (where someone says they were coerced into pleading guilty), or our regulator, the Legal Services Commission (which decides cases of alleged misconduct).

Complaints after a "sub-optimal" outcome are quite common, and there has been a quantum shift in the approach that (a) facilitates the making of complaints and (b) makes the process transparent.

Recording the discussion of difficult issues or the making of hard decisions is seen by many as self-protection.

I imagine that there have been cases where flight recorder data has demonstrated that the crew were blameless.

[lomapaseo]

I imagine that there have been cases where flight recorder data has demonstrated that the crew were blameless.

The word "demonstrated" may be interpreted in different ways by the causal observer.

In my view this kind of data requires expert and subjective interpretation by these same experts. I'll leave it to the winning side of a court proceeding to decide what was demonstrated

[Just a Grunt]

I imagine that there have been cases where flight recorder data has demonstrated that the crew were blameless.

A poor choice of words on my part. When I said "cases" I didn't mean court cases, but rather investigations into accidents/incidents.

No argument that the data requires expert interpretation.

[johns7022]

After a plane crash...

Burn the maintenance logs
Burn the pilot logbooks
Throw the FDR in the river
Shoot all surviving witnesses
Crush, melt, and shoot aircraft wreckage into space

Right?

[Cerise]

Please forgive me for coming into this discussion so late, I've only just become aware of it. This story is interesting and unuaual.Wikipedia tells me that there were no fatqalities in this accident, so all the relevant witnesses are available for cross-examination: what a pleasure!

Whether the CVR contents are publicly revealed or not, the flight crew will be subject to the most strenuous testing of their evidence, and the case will be primarily decided on their cross-examination.

The primary purpose for the CVR recording in this civil litigation would be in an attempt to discredit the recorded witnesses, and that never was the original intent for a cockpit voice recording. There is absolutely nothing to stop people from investigating the accident for other purposes (including civil litigation), and litigants are quite entitled to use all the normal legal powers and processes to gather the necessary information.

Using the CVR in this court case would be a fishing exercise, seeking weaknesses in testimony. Since all the normal legal processes already exist in this case, it is hard to justify using a CVR to leverage a particular interest.

Maybe I am biased??